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/ 

A SCRAP BOOK 


ON 

CONSTITUTIONAL 

GOVERNMENT 


BY 

JAMES J. MAYFIELD 


/ 


Atlanta 

Foote & Davies Co. 
1925 


(U^ >- 


rf/fMI 

•M3<f 

Qjyjuy 2— 


COPYRIGHTED. 1925 
BY 

J. J. MAYFIELD 


/ 


« 


♦ 


» t . 



0CT18’26 ( 


C 




DEDICATION. 


As a slight token of esteem and friendship for my 
true, tried and trusted friend, Governor W. W. 
Brandon, who has devoted most of his life to the 
service of his Government, this volume is affec¬ 
tionately dedicated. 


J. J. MAYFIELD. 




PREFACE 

If this compilation be of any value, or if it shall further 
thought upon the subject of Constitutional Government, and 
in the least aid those who desire to study the subject, I shall 
have then accomplished all that I sought, and hoped. In the 
language of the great American writer, jurist and lawyer, 
Judge Dillon, who ascribes the thought and words to an old 
English law-writer, “I shall then with the vanity of an author 
compare myself to one who travels over the dreary country, 
has picked up some plants, which he afterwards transplants to 
some delightful spot in a milder climate, where they may at¬ 
tract attention, even among more agreeable productions and 
specimens, by those who would never have noticed them in 
their native soil; and if they have any useful virtues, they 
will be welcome wherever they may be made to grow.” 

I have not attempted, except on rare occasions, to give my 
own ideas or words; but only to collect and arrange those of 
others, whom I conceive to be the best authority and who 
have spoken most to the point and who have used the most 
forceful language. In so far as practicable, I have attempted 
to give all phases of questions; have quoted from those who 
differed as to the objects and effects and as to the proper con¬ 
struction and meaning of various provisions of our Constitu¬ 
tion. In these cases where there are extreme views on a given 
subject, I have quoted from those who entertained views mid¬ 
way between the two extremes. These as a rule, under the 
law of nature, will be found to be correct. The center of 
gravity is midway between the two extremes. The product 
of the means is equal to the product of the extremes. “There 
is a means in all things, beyond nor this side of which right 
cannot exist.” Both extremes are errors. The antipode of 
error is not truth, but error still: truth is midway between 
them. That the makers of our Constitution and the founders 
of our government recognized this law of nature, and built 
and made accordingly is the reason we have the best govern¬ 
ment in the world. If in the future, we depart from this law 
of nature, and go to either extreme, we thereby destroy that 
feature of our government which makes it the best. One ex¬ 
treme leads to Monarchy, the other to Anarchy, midway be¬ 
tween these two we stand and avoid both extremes. The fun¬ 
damental principles of our government are eternal and im- 


v 


vi Preface 

mutable; they are laws of nature; the rules for administering 
it are temporal and changeable,—they are laws of men and 
may be adjusted to meet changed conditions to which the eter¬ 
nal principles are to be applied. 

The object and purpose of the book is not to declare new 
principles, or to make new arguments, never before made; 
not even to say or print anything not heretofore said or 
printed; but to place before the people, in one book, the ‘best 
things said by the best writers and speakers on those subjects. 
To thus place before the readers the common-sense of the 
subjects in thought and the language of those whose charac¬ 
ter and reputations command the respect of the world. 

The body and notes in the main are quotations and ex¬ 
cerpts from the writings of those who made and proposed it, 
those who have been charged with the duty of construing and 
enforcing it, copious quotations from many text-books and 
commentators on the Constitution and Constitutional Gov¬ 
ernment. Among the sources from which the quotations and 
excerpts are taken and to which references are made are the 
Federalist, the Decisions of the Supreme Court of the United 
States, Story, Cooley, Black, the Tuckers, Tiedman, Miller 
and Foster’s books on Constitutional Law. The messages, 
writings and speeches of many of the Presidents, the speeches 
and writings of many of the United States Senators, such as 
"Webster, Clay, Calhoun, Blaine, Hayne and others. There are 
quotations and excerpts from noted statesmen of America, 
England and France as to our Constitutional Government and 
various provisions of the Constitution, their sources, origin, 
object and purposes. 


INTRODUCTORY 

The first parts of this book are intended to show the differ¬ 
ent stages by which British Government of America was trans¬ 
formed into American Written Constitutional Government. 
How Magna' Charta was a bill of rights for the American 
Colonists. How the Declaration of Independence was a Decla¬ 
ration of Fundamental and Governmental Principles, and an 
indictment of King George, and his Parliament, for denying 
the Colonists their rights secured by the Great Charter and 
other English bills of rights. How the Colonies were trans¬ 
formed into State Governments. How the States were con¬ 
federated to carry on the War of the Revolution. How the 
Articles of Confederation were transformed into the Consti¬ 
tution of the United States and how it created a dual form of 
Government. By these transformations, all the sovereign gov¬ 
ernmental powers of Great Britain which controlled the 
Colonies were thrown off by the Declaration of Independence, 
and the American Revolution. The Colonists were then free 
to form their own Governments, which they did. 

This scrap-book is to show how they did it and the effect 
thereof. It shows how the people of each colony formed a 
separate State Government, giving to this State Government 
all the powers, except such as they reserved. How these 
States first confederated and how they later dissolved the Con¬ 
federation and formed the United States Government. How 
and which of the powers were vested in the United States; and 
which were reserved to the State Governments and which re¬ 
tained by the people themselves with which they have never 
parted, and which consequently are not vested in any Gov¬ 
ernment. How the powers granted to the State Government 
and the United States Government are again subdivided into 
legislative, judicial, and executive. How each department of 
Government is given a check upon both the other departments. 
How the Federal Government is given checks upon the State 
Governments. Plow each of the powers so distributed by, and 
reserved to the people, balances even against all the others. 
How the laws of these Governments so created is patterned 
after the laws of nature, so that the centrifugal and centrip¬ 
etal forces, each acting on the Government, causes it to go 
on in its intended orbit and course without collisions with 
other Governments. How the internal and external forces 

vii 


Introductory 


viii 

each aids and tends to preserve the compound and dual Gov¬ 
ernment so founded. How the ^destruction or disturbance of 
any of the forces, powers, or distribution thereof, may tend to 
wreck the whole. 

The Colonists claimed the rights and privileges conferred 
or granted by Magna Charta as their birthright. The Dec¬ 
laration of Independence was largely an indictment of King 
George, and Parliament, for denying to the Colonists their 
rights and privileges, which other English subjects enjoyed by 
virtue of Magna Charta, and other bills of rights. 

The Revolution was on account of being denied the rights 
and privileges which English laws accorded other English 
subjects, and not to acquire rights or privileges not enjoyed 
by other British subjects. 

It is true that after the Revolution, when the Colonies be¬ 
came States, they did reserve to the Colonists, the individuals 
and their descendants, rights and privileges, not theretofore 
enjoyed by any people, or theretofore embodied in any bill of 
rights. They refused to grant to the government they there¬ 
by created, many of the powers theretofore considered gov¬ 
ernmental. The governments that each of these Colonies cre¬ 
ated for themselves, was created by a written Constitution or 
Charter, so that there might never be any doubt as to the pow¬ 
ers granted to the government thereby created, nor as to those 
thereby reserved to the people or to the individuals who cre¬ 
ated the government. These grants, deeds, or charters, called 
State Constitutions, were new to the history of all the world. 
Theretofore, all such grants, charters, bills of rights, etc., in 
the nature of Constitutions, were made by Kings, Monarchs, 
Tyrants, Despots, or their Agents and Emissaries, to the peo¬ 
ple, or subjects. In those the government was always the 
grantor, and the people or the subjects, the grantees. All 
governmental power was not granted, and was never possessed 
by the States, the grantors expressly reserved unto each of 
themselves, individually, and their descendants, certain rights 
and privileges theretofore disregarded by Despotic govern¬ 
ments, and even covenanted with the grantee, that it would 
ever warrant and defend those reserved rights and privileges, 
against the grantee of the government or any dependent there¬ 
of, and even against the people themselves. The government, 
therefore, was given no power to deny to or to deprive any 
one of the people of any one of these reserved rights or privi¬ 
leges, and it was required to see to it that none or all of the 


Introductory 


IX 


people were deprived of any one of these reserved rights 
or privileges. The American Constitutions are unique in this 
respect, that they are in part an attempt of the people to pro¬ 
tect themselves against the despotism of themselves. It was 
known to the makers of those Constitutions, as it is to all 
students of ancient and modern history, that the people them¬ 
selves, sometimes became, for a time, the most cruel despots 
and tyrants, to all who did not agree with them. These pro¬ 
visions were, therefore, intended to have the government cre¬ 
ated, to protect the minority against the aggressions of the 
majority. Thus each Colony, excepting Rhode Island, threw 
off the British yoke, and formed a State government, under a 
written Constitution. This act on the part of the Colonies, be¬ 
ing a revolution, was accepted as such by the British Crown, 
and an attempt was made to coerce them into submission to 
the will of the Crown. This resulted in the War of The Revo¬ 
lution. It was known and apparent to all that the war could 
not be carried on successfully, except by unity of action by 
all the Colonies. As there was unity of action in declaring 
the Colonies independent, there was need of unity of action to 
maintain the Declaration, and to establish Independence. To 
this end, Articles of Confederation were agreed upon, by and 
between the Colonies, by which a Confederated government 
was created, but without destroying the unity or independence 
of each of the States. By these Articles of Confederation, the 
war power of each State, was granted or conferred upon the 
Confederated Government. Likewise power to provide for 
and to create and control international and external affairs 
was conferred upon the Confederated government, but the 
power to control internal affairs, that is to maintain local self- 
government was retained, reserved and not granted. These 
powers granted to this Confederated government, were 
granted as a whole to a Congress, thereby created. There was 
no division of the governmental powers, and a grant to each 
of the divisions, as was done in the State Constitutions, and 
in the Federal Constitution, which revised, or was substituted 
for the Articles of Confederation. In fact, no attempt was 
made in the Articles of Confederation to grant Executive or 
Judicial powers or functions, but only Legislative powers were 
granted. This Congress of the Confederated Government 
nould pass statutes, but every State construed and enforced 
them as it pleased. Any or all of the states could construe any 
Act as it pleased, hold it valid, and enforce it, as to its own 


X 


Introductory 


people, or hold it void, and decline to enforce it, or enforce it 
in part, or utterly fail to enforce it or to notice it without ever 
attempting to construe it. The Confederated government 
could levy taxes, but it could not collect them, unless the 
States saw fit to comply with the Statutes. The Confederated 
Government could make requisitions on the States for taxes or 
funds to support the government, and for soldiers and to carry 
on the War, but the States could obey in full or in part, or 
refuse entirely, and the Confederated Government, nor the 
other States could not compel observance. 

The Confederated Government was found to be too weak, 
it was well described as a rope of sand. This weakness, with 
other faults, one of which gave the States the power to control 
commerce with other States, and foreign countries, led to the 
calling of a Convention of all the States to revise the Arti¬ 
cles of Confederation. This convention resulted not only in a 
revision of the Articles, but in the proposal of a Constitu¬ 
tion, modeled after the State Constitutions, which con¬ 
ferred on the Government to be created thereby, not only 
all the powers conferred on the Confederation, but many 
additional powers. It followed the State Constitution, in 
dividing all the powers to be granted into three classes, 
Legislative, Judicial and Executive. It granted these powers 
not to the government as a whole, but to the respective and 
appropriate departments of government, which it created, and 
provided that neither of the departments should encroach 
upon the powers granted to the others. This government thus 
created, was thereby not only given powers to make laws, but 
also to construe and to enforce them; the last two powers not 
being conferred on the Confederated Government. Nothing 
like all the governmental powers, possessed by the States 
which were possessed by the people after the Declaration 
of Independence, and before the formation of State Constitu¬ 
tions, and the Articles of Confederation were granted to the 
new government created by the Federal Constitution. Very 
few of these sovereign powers were thus granted. Only those 
relating to international, inter-state, or external affairs were 
thus granted. All those relating to purely local and internal 
affairs were retained by the States, and the people of the re¬ 
spective States. This was true from the very nature of 
things; that is, that the government to be created was one of 
granted powers, and which of necessity could possess no power 
or right, except such as passed by the grant. For fear, how- 


Introductory 


xi 


ever, that there might be some mistake or misunderstanding 
as to this feature, the Tenth Amendment to the Constitution 
expressed this intent and reservation of rights and powers. 
In fact the first ten amendments were proposed by the first 
Congress, and adopted and ratified by the States, to prevent 
any claim or contention on the part of the Federal Govern¬ 
ment or its officers and agents, that the States had parted with 
any of the powers granted them by the people, except those 
specified in the grants of the Federal Constitution or neces¬ 
sarily inferred from those so expressly granted. These ten 
amendments were therefore intended to take the place of 
a Bill of Rights in the original Constitution, the omission 
therefrom being then agreed by a great majority of the 
people to have been a grievous fault of the original instru¬ 
ment. It is well authenticated by history that the original 
Constitution would not have been ratified by the States, but 
for the assurance given the people by the friends of the Con¬ 
stitution, by such men as Washington, Madison and Hamil¬ 
ton, that the Constitution would be cured of this serious de¬ 
fect, as soon as possible, by amendments to it, which was pro¬ 
vided for by Article Five of the original. 

The writer has heard of the following legend as to these 
amendments and their connection with or relation to the rati¬ 
fication of the Constitution. How much, if any, truth there 
may be in it, he does not know. That there were solid bases 
for the story which does no harm, but is a credit to the char¬ 
acter and memories of all concerned, history does establish. 

The story or legend, as the writer remembers it, runs some¬ 
thing like this: Col. Hamilton being engaged with Madison 
and Jay in writing and having published the papers called 
The Federalist which were intended to secure the ratification 
of the proposed Constitution, by the people of the several 
States, by showing its virtues and pointing out the vices of the 
Articles of Confederation, for which it was to form a substi¬ 
tute, saw that it would fail of ratification by the requisite 
number of States, unless something was done quickly to sat¬ 
isfy the people, that it would be amended so as to contain a 
bill of rights, similar to those contained in the State Consti¬ 
tutions. Hamilton at one time had contended against the in¬ 
sertion of a bill of rights on the ground, however, that it was 
useless, and that as all the rights reserved to the States, and 
the people, could not be expressed that it might be con¬ 
tended that those not expressed were granted, applying the 


Introductory 


xii 

rule “Expressio Unius, exclusio alterius.” This argument was 
answered by providing that this rule should not apply. Un¬ 
der these circumstances it is said that Col. Hamilton said to 
Gen. Washington, “The Constitution is going to fail of rati¬ 
fication, unless something is done quickly.” Washington 
asked, “What can we do that we have not done, and are do¬ 
ing?” Col. Hamilton replied, “There is one man in the world 
who can save it, and there are two men in the world who can 
induce him to save it.” Gen. Washington said: “You speak 
in enigmas, explain—what do you mean?” Col. Hamilton 
answered, “I mean that Thomas Jefferson can save it, and 
that George Washington and James Madison can induce him 
to save it, now get to work.” 

This is probably only legend or fiction, but it does illustrate 
a condition, and what was done, and the result. Washington 
and Madison did take up a correspondence with Mr. Jeffer¬ 
son, who was then Minister to Prance, and was there when 
the Constitution was formed, and proposed to the States for 
ratification. They each sent him copies of the proposed Con¬ 
stitution, and requested his criticism of it. They each by let¬ 
ter discussed with Mr. Jefferson its virtues and vices. Mr. 
Madison sent to Mr. Jefferson copies of the Federalist, written 
by Hamilton, Madison and Jay. Mr. Jefferson complained of 
the omission of a bill of rights, and at first was of the opinion 
that a new one should be drafted containing a bill of rights, 
similar to those in the Virginia Constitution, drafted by Mr. 
Mason. He subsequently became converted to the plan of 
adopting or ratifying it as it was under an agreement with its 
friends to amend in this respect as soon as practicable. Meet¬ 
ings of its friends were had to this end, and an agreement 
reached in accord with Mr. Jefferson’s idea. These amend¬ 
ments, thirteen in number, were drafted by Mr. Madison and 
submitted to Mr. Jefferson, for suggestions. The amendments 
were proposed by the first Congress held under the Constitu¬ 
tion, and ten of them were adopted as they now appear in the 
Constitution. Mr. Jefferson did write to many of his influen¬ 
tial friends to support the ratification of the Constitution. 
The fact that it was known that Jefferson favored ratifica¬ 
tion no doubt had a wonderful influence on the people, and 
the delegates in many of the States in supporting the ratifi¬ 
cation. This much is shown by the correspondence of Jeffer¬ 
son, Washington and Madison.. Many quotations from these 
letters will appear in subsequent pages of this book. 


A Scrap-book on Constitutional Government 

MAGNA CHARTA 

The granting of this charter of charters of liberties is un¬ 
questionably among if not the greatest event in the history of 
English-speaking peoples. At the time this charter was 
granted, the people had no civil right other than custom and 
those the Kings allowed. There was no law other than custom 
and the will of the King. There was no law-making body, 
Parliament, Congress, Legislature, or Commission with or 
without the consent of the King. This charter is the fountain 
spring from which all branches, creeks, and rivers of English 
written constitutional law flows. At and prior to the date of 
the grant of this great charter war was the usual and then 
thought to be the natural condition among nations and races. 
The people bore its burdens, shared its glory, fought for their 
King, under the hope of rewards and protection by him. It 
was the laws of Edward that the Barons at Runnymeade 
wished re-established; and which were in part done by the 
grants of Magna Charta. 

Many of the rights embodied in Magna Charta were not 
created thereby, but merely restored those which had been 
lost. This is true as to the right of Jury Trial. The barons 
were the actors in the demands upon the King for the grants 
of rights acquired by Magna Charta; but the people were 
back of the barons and urged them to action, even against the 
orders of the Pope. 

When Langdon was reading the proposed charter to the 
King, the latter complained of much of it; but, when the forty- 
ninth chapter, part two, was read the King was furious and 
swore by his favorite oath, which was by “God’s teeth” that 
he would never grant it, and asked Langdon why they did not 
ask a grant of his throne. He said to Langdon that he was 
King and intended to remain King, and that his word was the 
only law, and that the barons nor the people had no right to 
ask such concessions, and that the request so to do was an in¬ 
sult. 1 The barons on receiving John’s reply, organized an 
army, called the “Army of God and Holy Church” and 
marched upon London, May 24, 1215. The barons held several 
conferences with the King and by emissaries, Langdon and 


Barrington’s Magna Charta, p. 149. 

1 


2 


Magna Charta 


Pembroke. They met the King at Counsel Meadow called 
Kunnymeade, on June 15, 1215, and presented their demands 
to him in person, to which he acceded. Mr. Barrington says 
they could now have received much more had they demanded 
it; but the barons were honest, and wanted only what was 
right. 1 This was the first charter to be obtained by force from 
any English monarch. John did not actually sign the docu¬ 
ment. He sealed and granted it. “Data per manum nostrum’' 
as was the custom of that time, the King herein speaks of 
himself as “We,” and not “I” as other monarchs had done. 
The barons also demanded a covenant of the King that he 
would faithfully perform his part of the agreement, and to 
insure this, they demanded and obtained the custody of the 
Tower of London until the fifteenth of the following August. 
The Pope declined to accede to or ratify the charter, and is¬ 
sued a bull annulling it, and releasing the King and all who 
were sworn to observe it. John gladly accepted the Pope’s 
declaration and agreed with the Pope that the charter was 
obtained by duress and coercion. The barons refused to ac¬ 
cede to the Pope’s declaration and he excommunicated them. 

John and the Pope then raised another army and went to 
war against the barons and would have probably been vic¬ 
torious but for the fact that the barons made an alliance with 
Philip, the King of France, who headed his army to aid the 
barons on May 21, 1216, and was fast gaining victory when 
John died Oct. 19, 1216. 2 The poet thus described the time 
and death of the King: 

“With John’s foul deeds, England’s whole realm is stinking, 

As doth Hell too, wherein he now is sinking.” 

In beginning his commentary on this chapter of Magna 
Charta, 2 Inst. 46, Coke says: 

This chapter containeth nine several branches: 

1. That no man be taken or imprisoned hut per legem terrae, that 
is, by the common law, statute law, or custom of England; for the 
words per legem terrae, being towards the end of this chapter, does 
referre to all the precedent matters in the chapter, etc. 

2. No man shall be discussed, etc., unless it be by the lawful judg¬ 
ment, that is, verdict of his equals, (that is of men of his own condi¬ 
tion,) or by the law of the land, (that is to speak it once for all,) by 
the due course and process of law. 3 

Barrington’s Magna Charta, p. 151. 3 United States Reports, Vol. 110, p. 

Barrington's Magna Charta, p. 157. 523. 


Magna Charta 


3 


The principal and true meaning of the phrase due process has 
never been more truly or accurately stated than by Mr. Justice 
Johnson, in Bank of Columbus v. Oakley, 4 Wheat., 235-244: 

As to the words from Magna Charta, incorporated into the Con¬ 
stitution of Maryland, after volumes spoken and written with a view 
to their exposition, the good sense of mankind has at last settled 
down to this: that they were intended to secure the individual from 
the arbitrary exercise of the powers of government, unrestrained by 
the established principles of private right and distributive justice. 1 

There is nothing in Magna Charta, rightly construed as a broad 
charter of public right and law, which ought to exclude the best of 
ideas of all systems and of every age; and as it was the characteristic 
principle of the common law to draw its inspiration from every foun¬ 
tain of justice, we are not to assume that the sources of its supply 
have been exhausted. On the contrary, we should expect that the new 
and various experiences of our own situation and system will mould 
and shape it into new and not less useful forms. 

The concessions of Magna Charta were wrung from the King as 
guarantees against the oppressions and usurpations of his prerogative. 
It did not enter into the minds of the baron to provide security against 
their own body in favor of the Commons by Uniting the power of 
Parliament; so that bills of attainder, ex post facto laws, declaring 
forfeitures of estates, and other arbitrary acts of legislation which 
occur so frequently in English history, were never regarded as incon¬ 
sistent with the law of the land; for withstanding what was attributed 
to Lord Coke in Bonham’s Case, 8 Rep. 115, 118 a, the omnipotence of 
Parliament over the common law was absolute, even against the com¬ 
mon right and reason. The actual and practical security for English 
liberty against legislative tyranny was the power of a free public 
opinion represented by the Commons. 

In this country written constitutions were deemed essential to pro¬ 
tect the rights and liberties of the people against the encroachments 
of power delegated to their governments, and the provisions of Magna 
Charta were incorporated into Bills of Rights. They were limitations 
upon all the powers of government, legislative as well as executive 
and judicial. United States Reports , Vol. 110, pp. 531-2. 

The phrase “due process of law” is not new in the constitutional 
history of this country or of England. It antedates the establish¬ 
ment of our institutions. Those who had been driven from the mother 
country by oppression and persecution brought with them, as their 
inheritance, which no government could rightfully impair or destroy, 
certain guaranties of the rights of life and liberty, and property, 
which had long been deemed fundamental in Anglo-Saxon institutions. 
In the Congress of the Colonies held in New York in 1765, it was de¬ 
clared that the colonies were entitled to all the essential rights, liber¬ 
ties, privileges, and immunities, confirmed by Magna Charta to the 
subjects of Great Britain. Hutch. Hist. Mas. Bay, Appendix F. “It 
was under the consciousness,” says Story, “of the full possession of 
the rights, liberties, and immunities of British subjects, that the col- 

^nited States Reports, Vol. 110, p. 527. 



4 


Magna Cliarta 

onists in almost all the early legislation of their respective assemblies 
insisted upon a declaratory act, acknowledging and confirming them.” 
1 Story Const. Section 165. In his speech in the House of Lords, on 
the doctrine of taxation without representation, Lord Chatham main¬ 
tained that the inhabitants of the colonies were entitled to all the 
rights and the peculiar privileges of Englishmen; that they were 
equally bound by the laws, and equally entitled to participate in the 
constitution of England. United States Reports, Yol. 110, p. 539. 

Magna Charta—upon which rested the rights, liberties and im¬ 
munities of our ancestors—was called, said Coke, “the Charter of the 
Liberties of the Kingdom, upon great reason, because liberos facit, 
it makes the people free.” Hallam characterizes the signing of it as 
the most important event in English history, and declares that the 
instrument is still the keystone of English liberty. “To have produced 
it,” said Mackintosh, “to have preserved it, to have matured it, con¬ 
stitute the immortal claim of England upon the esteem of mankind.” 
By that instrument the King, representing the sovereignty of the na¬ 
tion, declared that “no.freeman shall be taken, imprisoned, or be dis¬ 
seized of his freehold, liberties, or free customs, or be outlawed, or 
exiled, or any otherwise destroyed; nor will we (not) pass upon him, 
nor condemn him, but by lawful judgment of his peers, or by the law 
of the land.” United States Reports, Yol. 110, p. 542. 

Erskine, in his speech delivered in 1784, in defense of the Dean of 
Asaph, said, in the presence of the judges of the King’s Bench: 
‘‘If a man were to commit a capital offense in the face of all the judges 
of England, their united authority could not put him upon his trial; 
they could file no complaint against him, even upon the records of the 
supreme criminal court, but could only commit him for safe custody, 
which is equally competent to every common justice of the peace. The 
grand jury alone could arraign him, and in their discretion might 
likewise finally discharge him, by throwing out the bill, with the 
names of all your lordships as witnesses on the back of it.” United 
States Reports, Yol. 110, p. 543. 

The royal governor of New York would not have had occasion to 
write in 1697 to the home government that the members of the pro¬ 
vincial legislature were “big with the privileges of Englishmen and 
Magna Charta.” 3 Bancroft, 56. Nor would the Colonial Congress of 
1774, speaking for the people of twelve colonies, have permitted, as it 
did, the journal of their proceedings to be published with a medallion 
on the title page, “representing Magna Charta as the pedestal on 
which was raised the column and cap of liberty, supported by twelve 
hands, and containing the words ‘ Hanc Tuemur, Hac Nitimur.' ” Hurd 
on Habeas Corpus, 108. Anglo-Saxon liberty would, perhaps, have 
perished long before the adoption of our Constitution, had it been in 
the power of government to put the subject on trial for his life when¬ 
ever a justice of the peace, holding his office at the will of the crown, 
should certify that he had committed a capital crime. That such of¬ 
ficers are, in some of the States, elected by the people, does not add to 
the protection of the citizen; for, one of the peculiar benefits of the 
grand jury system, as it exists in this country and England, is that 
it is composed, as a general rule, of a body of private persons, who do 
not hold office at the will of the government, or at the will of voters. 
United States Reports, Yol. 110, p. 554. 


Magna Charta 


5 


COPY OF 

THE GREAT CHARTER OF KING JOHN 1 

I 1 

John, by the grace of God, King of England, to the archbishops, 
bishops, abbots, earls, barons, justices, foresters, sheriffs, provosts, 
ministers, and all his bailiffs and his lieges, greeting. Know ye, that 
we by the grace of God, and for the saving of our soul, and the souls 
of all our ancestors, and of our heirs, and for the honour of God, and 
the safety of holy church, and for the amendment of our government, 
by the advice of our honoured fathers, Stephen, archbishop of Can 
terbury, primate of all England, and cardinal of Rome; Henry, arch 
bishop of Dublin, William, bishop of London, Peter, bishop of Win¬ 
chester, Jocelin, bishop of Bath, Hugh, bishop of Lincoln, Walter, 
bishop of Worcester,. William, bishop of Chester, Benedict, bishop of 
Rochester and master Pandulph, subdeacon of our Lord the apostle, 
and our friend brother Anner, master of the order of knights tem¬ 
plars in England; and by the advice of our barons, William, earl 
marshal earl of Pembroke, William, earl of Salisbury, William, earl of 
Warren, William, earl of Arundel, Alan of Galloway, constable of 
Scotland, Warin Fitz-Gerard, Peter Fitz-Herbert, Thomas Basset, Alan 
Basset, Philip d’Aubenie, Robert de Ropelee, John Marshal, and John 
Fitz-Hugh, and by the advice of other lieges: 

II 2 

Have in the first place granted to God, and confirmed by this our 
present charter, for us and for our heirs forever, That the churches 
of England shall be free, and shall enjoy their rights and franchises 
entirely and fully: and this our people is, that it be observed, as may 
appear by our having granted, of our mere and free will, that elec¬ 
tions should be free (which is reputed to be a very great and very 
necessary privilege of the churches of England) before the difference 
arose betwixt us and our barons, and by our having confirmed the 
fame by our lord the apostle Innocent the third. Which privilege we 
will maintain: and our will is, that the fame be faithfully maintained 
by our heirs forever. 

IIP 

We have also granted to all the freemen of our kingdom, for us 
and for our heirs forever all the liberties hereafter mentioned, to have 
and to hold to them and their heirs of us and our heirs. If any of our 
earls, our barons, or others that hold of us in chief by knight-service, 
die; and at the time of his death his heir be of full age, and relief be 
due, he shall have his inheritance by the ancient relief; to wit, the 
heir or heirs of an earl, for an entire earldom, C. pounds; the heir 
or heirs of a baron, for an entire barony, C. marks; the heirs or heirs 
of a knight, for a whole knight’s fee, C. shillings at most; and where 
less is due, less shall be paid, according to the ancient customs of the 
several tenures. 

*A true copy from the original 3 This chapter was to change the 
French. feudal law as to the proprietorship 

2 This chapter was to free the church antl , succession of title to lands and 
and religion from the control of the roal estate. 

Crown. 


6 


Magna Charta 


IV 1 

If the heirs of any such within and in ward, they shall have their 
inheritance when they come of age without relief, and without fine. 

V 2 

The guardians of the land of such heirs being within age, shall 
take nothing out of the land of the heirs, but only the reasonable 
profits, reasonable customs, and reasonable services, and that without 
making destruction of waste of men or goods. 

VI 

And if we shall have committed the custody of the land of such 
heir to a sheriff, or any other who is to account to us for the profits 
of the land, and that such committee make destruction or waste, we 
will take of him amends, and the land shall be committed to two law¬ 
ful and good men of that fee, who shall account for the profits to us, 
or to such as we shall appoint. 


VII 

And if we shall give or sell to any person, the custody of the lands 
of any such heir, and such donee or vendee make destruction or waste, 
he shall lose the custody, and it shall be committed to two lawful, 
sage, and good men, who shall account to us for the same, as aforesaid. 

VIII s 

And the guardian, whilst he was in custody of the heir’s land, 
shall maintain the houses, ponds, parks, pools, mills, and other ap¬ 
purtenances to the land out of the profits of the land itself; and 
shall restore to the heir, when he shall be of full age, his land well 
flocked, with ploughs, barns, and the like, as it was when he received 
it, and as the profits will reasonably afford. 

IX 4 

Heirs shall be married with disparagement; insomuch, that before 
the marriage be contracted, the persons that are next of kin to the 
heir, be made acquainted with it. 


X 3 

A widow after the death of her husband, shall presently and with¬ 
out oppression, have her marriage and her inheritance; nor shall 
give anything for her marriage, nor for her dower, nor for her in¬ 
heritance, which she and her husband were seized of the day of her 
husband’s death: and she shall remain in her husband’s house forty 
days after his death; within which time her dower shall be assigned 
her. 


lr This changed the law and custom 
as to the rights of heirs on becoming 
of age to get possession and control 
of their estates without the payments 
of fines. 

Chapters V, VI, and VII were to 
prevent the King from permitting or 
committing waste of the estates. 


3 This was to secure to the heir his 
inheritance without waste of imple¬ 
ments necessary to cultivate it. 

4 This was to prevent destructions of 
estates in consequence of marriage 
and to promote marriages. 

5 To change the law that required 
the widow to go into mourning for one 
year after the death of her husband 
or protect her dower and quarantine 
rights. 


Magna Charta 


7 


XP 

No widow shall be compelled to marry if she be desirous to live 
single, provided she give security not to marry without our leave, if 
she hold of us, or without the lord’s leave of whom she holds, if she 
hold of any other. 

XII 1 2 

We nor our bailiffs will not seize the lands or rents of a debtor for 
any debt so long as his goods are sufficient to pay the debt; nor shall 
the pledges be distrained upon whilst the principal debtor have not 
wherewith to pay the debt, the pledges shall answer for it; and if 
they will, they shall have the lands and rents of the debtor till they 
have received the debt which they paid for him, if the principal debtor 
cannot show that he is quit against his pledges. 

XIII 3 

If any persons have borrowed money of Jews, more or less, and 
die before they have paid the debt, the debt shall not grow whilst 
the heir is under age; and if such debt become due to us, we will 
take no more than the goods expressed in deed. 

XIV 4 

And if any die, and owe a debt to the Jews, his wife shall have her 
dower, and shall be charged with no part of the debt; and if the 
children of the deceased person be within age, their reasonable 
estovers shall be provided them, according to the value of the estate 
which their ancestor had; and the debt shall be paid out of the residue, 
saving the services due to the lord. In like manner shall it be done 
in cases of debts owing to other persons that are not Jews. 

XV 5 

We will impose no escuage nor aids within our realm, but by the 
common council of our realm, except for our ransom, and for the mak¬ 
ing our eldest son a knight, and for marrying our eldest daughter 
once; and for these purposes there shall be a reasonable aid required. 

XVI 6 

In like manner shall it be done within the city of London: and 
moreover, the city of London shall have her ancient customs and 
liberties by land and water. 


1 To prevent the lords from com¬ 
pelling the widows to marry proffered 
spouses or to forfeit their estates, 
hut it prevents her from marrying an 
enemy. 

2 This was to preserve the lands to 
the tenants and heirs; it has come 
down to us and is now the law in 
most States of the American Union. 

3 This chapter was to prevent usury 
by the Jews, the Christians being 

prevented from taking it by the laws 
of the church. It was also to pre¬ 

serve the lands for the widow and 

heirs. 


4 As a part of chapter X and made 
to include all debts. 

5 Escuage was a tax on land or pos¬ 
sessing rights thereto to be used ex¬ 
clusively for war purposes. This pro¬ 
hibited the tax without the consent 
of the great Council provided for in 
Magna Charter. It is said that no 
one of the three excepted cases were 
ever exercised. 

6 Chapters XVI and XVII supple¬ 
ment Chapter XII and modify it as 
to city’s name, so that the tax could 
not be levied in London even with the 
consent of the Council. 


8 


Magna Charta 


XVII 

We will moreover and grant, that all other cities, and boroughs, 
and towns and ports, have, in all respects, their liberties and free 
customs. 

XVIII 1 

And as for coming to the common council of the kingdom, and for 
assessing aids (except in the three cases aforesaid) and as for the 
assessing of escuage, we will cause to be summoned the archbishops, 
abbots, earls, and the greater baron, each in particular by our letters; 
and moreover, we will cause to be summoned in general, by sheriffs, 
and bailiffs, all that hold of us in chief, at a certain place; and in 
our said letters we will express the cause of the summons. And 
when the summons shall be so made, business shall go on at the day 
assigned, by the advice of such as are present, though all that are 
summoned do not appear. 

XIX 2 

We will not allow for the future, that any take aid of his free-men, 
but only to ransom his person, to make his eldest son a knight, and 
to marry his eldest daughter once; and for these purposes there shall 
but a reasonable aid be given. 


XX 3 

None shall be distrained to do greater service for a knight’s fee, 
or for any other frank-tenement than what is due by his tenure. 

XXI 4 

Common pleas shall not follow our court, but shall be held in a 
certain place. 


XXII 3 


Recognizances of novel disseisin, mordancsterm and darrein pre¬ 
sentment, shall be taken nowhere but in their proper counties, and in 
this manner: We, or our chief justice (if ourselves be out of the 
realm) will send two justices through every county four times a 
year; who, with four knights of every county, to be chosen by one 
county, shall take the said assizes in the county, at a day when the 
county-court is held, and in a certain place; and if the said assizes 
cannot be taken upon that day, so many knights and free tenants of 
them that were present in the county-court that day, shall stay, as 
may give a good judgment, according as the concern may be greater 
or less. 


1 This provided for summoning the 
great council which was a kind of 
Embryonic Parliament. 

2 Little different from Chapter XII. 

3 This was to prevent execution 
against tenants by distringas or 
otherwise. 


4 To secure permanency and certain¬ 
ty as to places of trial. 

5 This fixed the venues or places for 
the trial of titles to land in the lo¬ 
cality, district in which the land was 
situated. This has been followed in 
most all the States in the American 
Union. They were venue Statutes. 


9 


Magna Chart a 

XXIII 1 

A freeman shall not be amerced for a little offence, but according 
to the manner of his offence; and for a great offence he shall be 
amerced according to the greatness of his offence, saving his con- 
tenement; and so a merchant saving his merchandize; and a villain 
in like manner shall be amerced saving his wainage, if he fall into 
our mercy; and none of the said amercements shall be affeered, but 
by oath of good and lawful men of the vicinage. 

XXIV 

An earl and a baron shall not be amerced but by their peers, and 
according to the manner of their offence. 

XXV 

No clerk shall be amerced but according to his lar-fee, and in like 
manner as others aforesaid, and not according to the quantity of his 
church-living. 

XXVI 2 

No ville nor any man shall be distrained to make bridges over 
rivers, but where they antiently have, and of right, ought to make 
them. 

XXVII 3 

No sheriffs, constables, coroners, nor other our bailiffs, shall hold 
the pleas of our crown. 

XXVIII 4 

All counties, hundreds, wapentakes and tithings, shall be at the 
antient farms without being raised, except our own demense mannors 

XXIX 5 


If any that holds of us a lay-fee die, and our sheriffs, or other our 
bailiffs shew our letters patents of summons for a debt which the 
deceased owed to us, our sheriff or bailiff may well attach and in¬ 
ventory the goods of the dead, which shall be found upon his lay-fee, 
to the value of the debt which the deceased owed to us, by the view 
of lawful men, yet so as nothing be removed till such time as the debt, 
which shall be found to be due to us, be paid; and the residue shall 
go to the executors to perform the testament of the dead; and if 
nothing be owing to us, all his goods shall go to the use of the dead, 
saving to his wife and children their reasonable parts. 


Chapters XXIII, XIV and XXV 
were to prevent excessive fines and 
punishments and to create a kind of 
exemptions, or bankruptcy, to prevent 
oauperism, by saving the laborer a 
part of his effects from his creditors 
to his family and dependents. The 
purposes or doctrine have come down 
to us in the forms of bills of rights 
against excessive fines and punish¬ 
ments, insolvency, exemptions, and 
bankruptcy bills. 

-To prevent taxations of municipali¬ 
ties and large land holders for the 
purposes of erecting bridges, fortifi¬ 
cations, bullwarks, etc. These taxes 
had been used against the barons to 
success in their wars against the 
Crown. They have sought to limit 


the expeditions against invasions of 
foreign foes and then by will of the 
Council only. 

3 This was to separate Executive 
and Judicial power and to secure 
judges, learned in law. 

4 This was to regulate the classifi¬ 
cation of cities, towns, counties, or 
municipalities or other divisions 
wherein vested title in respective lo¬ 
calities to the King, prelates, or no¬ 
bles, and to prevent the extortion of 
rents in certain classes mentioned. 

5 This regulated and changed the 
right of decedents to dispose of their 
lands. At the date of the charter a 
decedent could not dispose of more 
than one-third of his estate by will. 


10 


Magna Charta 


XXX 1 

If any freeman die intestate, his goods shall be divided by the 
hands of his near kindred and friends by the view of holy church, 
saving to every one their debts which the dead owed them. 

XXXI 2 

None of our constables, nor other our bailiffs shall take the corn, 
nor the other goods of any person without paying for the same pres¬ 
ently, unless he have time given him by consent of the vendor. 

XXXII 3 

Our constables shall distrain no men who holds by knight-service, 
to give money for castle-guard, if he has performed it himself in 
proper person, or by another good man, if he could not perform it 
himself for some reasonable cause; and if we lead him, or send him 
into the army, he shall be discharged of castle-guard for so long time 
as he shall be with us in the army. 

XXXIII 4 

Our sheriffs, our bailiffs, or others, shall not take the horses, nor 
carts of any freeman to make carriage, but by leave of such freeman. 

XXXIV 5 

Neither ourselves nor our bailiffs shall take another’s wood for 
our castles, or other occasions, but by his leave whose wood it is. 

XXXV fl 

We will hold the lands of such as shall be convicted of felony but 
a year and a day, and then we will restore them to the lords of the 
fees. 


xxxvr 

All wears shall, from this time forward, be wholly taken away in 
Thames and Medway, and throughout all England, except upon the 
seacoast. 


^his provided for the distribution 
of estate in case of intestacy, that is 
no will, before the charter, or at 
least at one period, when the whole 
estate went to the chief lord, as it 
was forfeited to the Crown in case of 
suicide. Hence, the old saying that 
one had as well suicide as to die in¬ 
testate. So many died in battle, how¬ 
ever, that the bishops wanted to 
change the law so that the church 
might get its tenth part. 

2 This was to prevent excessive 
levies and sales of property for pay¬ 
ment of castle guards against ten¬ 
ants. The duty of guarding the cas¬ 
tle could not then be delegated by the 
tenant, and if he was absent, his es¬ 
tate was seized by the King’s agen¬ 
cies. 


3 This allowed the tenant to perform 
and discharge the duty of castle guard 
by a deputy or agency. 

4 Explains itself. 

5 Explains itself. 

6 A felony then was a crime punished 
by death and there were hundreds of 
them, compared with a few as now, 
and this chapter was to relieve the 
forfeiture of the estates of felons 
from being absolute. 

7 This was to remove obstructions 
from the rivers so the people could 
use the streams to obtain wood and 
allow the fish to escape and be pre¬ 
served for the people. 


Magna Chart a 


11 


XXXVII 1 

The writ called Precipe henceforth shall be made to none out of 
any tenement, whereby a freeman may lose his court. 

XXXVIII 2 3 

One measure of wine shall be used throughout our kingdom, and 
one measure of ale, and one measure of corn, to wit, the London quart. 
And there shall be one breadth of dyed cloths, russets, and hauber- 
gets, to wit, two ells within the lists: and concerning weights, it 
shall be in like manner as of measures. 

XXXIX s 

Nothing shall be given or taken henceforth for a writ of inquisi¬ 
tion of life or member, but it shall be granted freely and shall not 
be denied. 

XL 4 

If any hold of us by fee-farm, or by foccage, and hold likewise land 
of others by knight-service, we will not have the custody of the heir, 
nor of the land which is of the fee of another, by reason of such fee- 
farm, foccage, or burgage unless such fee-farm owe knight-service. 

XLI 

We will not have the wardship of the heir, nor of the land of any 
person, which he holds of another by knight-service, by reason of 
any petit serjeantry by which he holds of us, as by the service of 
giving us arrows, knives, or such like. 

XLI I 5 

No bailiff for the time to come shall put any man to his law upon 
his bare word, without good witnesses produced. 

XLIII 6 

No freeman shall be taken, nor imprisoned, nor disseized, nor out¬ 
lawed, nor exiled, nor destroyed, in any manner; nor will we pass 
upon him, nor condemn him, but by the lawful judgment of his peers, 
or by the law of the land. 


XLIV 7 

We will sell to none, we will deny nor delay to none the right and 
justice. 


1 This was to control the legal ef¬ 
fect of this Judicial writ, and to thus 
avoid the loss of title without proper 
notice. 

2 To establish a uniform system of 
weights and measures to prevent 
cheats and swindles. This was fol¬ 
lowed in the Federal Constitution. 
Art. I, Sec. 8, Cl. 5. 

3 To prevent unreasonable confine¬ 
ment to secure speedy trials. The 
prototypes of our hills of rights, as, 
the rights of Habeas Corpus, and 
other rights of personal liberty. 

4 To prevent the King from claiming 

profits of certain lands held by cer¬ 

tain tenants. 


5 This and the two following chap¬ 
ters provided for certain rights as to 
jury trials to prevent unreasonable 
arrests and are the prototypes of 
American Bills of Rights on the sub¬ 
ject. Putting one to his law was 
putting him to his oath. These three 
sections were intended to put an end 
to the custom of a man having to buy 
his justice from the King. See the 
4th, 5th and 6th amendments to the 
Federal Constitution. 

6 See note to XLII. 

7 See note to XLII. 


12 


Magna Charta 


XLV 1 

All merchants may, with safety and security, go out of England, 
and come into England, and stay, and pass through England by land 
and water, to buy and sell without any evil tolls, paying the antient 
and rightful duties, except in time of war; and then they that are 
of the country with whom we are at war, and are found here at the 
beginning of the war, shall be attached, but without injury to their 
bodies or goods, till it be known to us or to our chief-justice, how our 
merchants are entreated which are found in our enemies’ country; 
and if ours be safe there, they shall be safe in our hand. 

XLVI 2 

It shall be lawful for all men in time to come to go out of our 
kingdom, and to return safely and securely by land and by water, 
saving their faith due to us, except it be in time of war for some short 
time for the profit of the realm. But out of this article are excepted 
persons in prison, persons out-lawed, according to the law of the land, 
and persons of the country with whom we are at war. Concerning 
merchants what is above said shall hold as to them. 

XLVI I 3 

If any hold of any escheat, as of the honour of Wallingford, Not¬ 
tingham, Boloin, Lancaster, or of other escheats which are in our 
hand, and are baronies, and die, his heirs shall owe to us no other 
relief, nor do us any other service, than was due to the baron of such 
barony when it was in his hand; and we will hold the fame in like 
manner as the baron held it. 


XLVI 11 4 

Men that dwell out of the forest shall not appear before our justices 
of the forest by common summons, unless they be in suit themselves, 
or bail for others who are attached for the forest. 

XLIX 5 

We will not make sheriffs, justices, nor bailiffs, but of such as 
know the law of the land, and will keep it. 

L 6 

All that have founded abbies, whereof they have charters from the 
Kings of England, or antient tenure, shall have the custody thereof 
whilst they are vacant, as they ought to have. 


1 This was to allow foreign mer¬ 
chants to visit England, to promote 
International commerce, and to re¬ 
peal the edicts of the King which had 
prevented such commerce. 

2 This was to allow subjects to leave 
the realm, except in war, to promote 
commerce, and friendly relations with 
other nations. 

3 The word “Honour” as used here 
means a more exalted lordship, and to 
give relief to those classes. 

4 Later there were many charters re¬ 

lating to forests exclusively. 


5 Prior to the charter, lawyers were 
eclesiastics. William, the Conqueror, 
however, fell out with the clergy and 
removed many of them. Later there 
sprang up a class of lawyers of ability 
such as Glanville. It was only after 
laws multiplied and became technical, 
that it required trained lawyers, as a 
profession. Hence this clause in the 
Charter. 

6 The barons having furnished the 
abbeys, they were determined that the 
King should not have the use of rent 
thereof, as John was doing. 


Magna Charta 


13 


LI 1 

All the forests that have been afforested in our time, shall in¬ 
stantly be disafforested; in like manner be it of rivers, that in our 
time and by us have been put in defence. 

LII 2 

All evil customs of forests and warrants, and of forests and war- 
raners, of sheriffs and their ministers, of rivers and guarding them, 
shall forthwith be inquired of in every county by twelve knights 
sworn of the same county, who must be chosen by the good men of 
the same county. And within forty days after they have made such 
inquisition, the said evil customs shall be utterly abolished by those 
same knights, so as never to be revived; provided they be first made 
known to us, or to our chief justice if we be- out of the realm. 

LIII 3 

We will, forthwith, restore all the hostages, and all the deeds which 
have been delivered to us by the English, for surety of the peace, or 
faithful service. 


LIV 4 

We will wholly put out of bailiffwicks, the kindred of Gerard de 
Aties, so that from henceforth they shall not have a bailiffwick in 
England; and Engeland de Cigoigni, Peron, Guyon, Andrew de Chan- 
ceas, Gyon de Cygoigni, Geffry de Martigni and his brothers, Philip, 
Mark and his brothers, Geffry his nephew, and all their train. And 
presently after the peace shall be performed, we will put out of the 
realm all knights, foreigners, slingers, serjeants and soldiers, who 
came with horse or arms to the nuisance of the realm. 

LV 5 

If any be disseized or esloined by us, without lawful judgment of 
his peers, of lands, chattels, franchises, or of any right, we will, forth¬ 
with restore the same; and if any difference a rise upon it, it shall be 
determined by the judgment of the five and twenty barons, of whom 
mention is made hereafter in the security of the peace. 

LVP 


As to all things whereof any have been disseized, or esloined with¬ 
out lawful judgment of their peers, by King Henry, our father, or by 
King Richard our brother, which we have in our hands, or which any 
other has, to whom we are bound to warrant the same, we will have 


4 This was to restore the lands which 
the King had wrongfully taken to in¬ 
crease his forests. 

2 This was to rid the forests of the 
evil customs and laws which had 
grown up as to them, to fix their 
boundaries and preserve them. 

3 This was to require the surrender 
of the sons and nephews of the barons 
whom John held as hostages. 

♦These people were hired soldiers 
whom John had imported to enforce 


his laws. History does not certainly 
inform us the reason for the barons 
demanding the removal of these peo¬ 
ple. 

6 This brought the restoration of the 
barons the land which the King had 
wrongfully taken from them in his 
wars with them. The land which he 
held from his predecessors he was to 
hold under certain conditions. 

6 See note to LV. 


14 


Magna Charta 


respite to the common term of them that are crossed for the holy 
land, except such things for which suits are commenced, or inquest 
by our order before we took upon us the cross. And if we return 
from the pilgrimage, or perhaps forbear going, we will do full right 
therein. The same respite we will have, and the same right we will 
do in manner aforesaid, as to the disafforesting of forests, or letting 
them remain forests, which the Kings, Henry our father, or Richard 
our brother have afforested; and as to the custodies of lands which 
are of the fee of other persons, which we have held till now by reason 
of other men’s fees, who held of us by knight-service; and of abbies 
that are founded in other men’s fees, in which the lords of the fees 
claim a right; and when we shall be returned from our pilgrimage, 
or if we forbear going, we will immediately do full right to all that 
shall complain. 

LVII 1 

None shall be taken nor imprisoned upon the appeal of a woman, 
for the death of any other than her husband. 

LVIII 2 

All the fines and all the amercements that are imposed for our use, 
wrongfully and contrary to the law of the land, shall be pardoned; 
or else they shall be determined by the judgment of the five and 
twenty barons, of whom hereafter, or by the judgment of the greater 
number of them that shall be present, or before Stephen, archbishop of 
Canterbury, if he can be there, and those that he shall call to him; 
and if he cannot be present, matters shall proceed, notwithstanding, 
without him; so always, that if one or more of the said five and 
twenty barons be concerned in any such complaint, they shall not 
give judgment thereupon, but others chosen and sworn shall be put in 
their room to act in their stead, by the residue of the five and twenty 
barons. 


LIX 3 


If we have disseized or esloined any Welchmen of land, franchises, 
or of other things, without lawful judgment of their peers, in England 
or in Wales, they shall, forthwith, be restored unto them; and if 
suits arise thereupon, right shall be done them in the Marches by the 
judgment of their peers; of English tenements according to the law 
of England, and of tenements in Wales according to the law of Wales; 
and tenements in the Marches according to the law of the Marches; 
and in like manner shall the Welch do to us and our subjects. 


1 The widow had a right of action 
against any one who wrongfully 
killed her husband; it was in the 
nature of a civil action to recover 
damages. Such rights or actions are 
now given to the next of kin of de¬ 
ceased, but most frequently to his 
personal representative for the benefit 
of his descendants. If the widow fail 
in her action, it was a bar to a crimi¬ 


nal prosecution. This is not so under 
our American statutes. 

2 This was to restore or compensate 
for taxes, fines, etc., collected from 
the barons for the purpose of carry- 
• ing on war against them. 

3 This was to restore to the Welch¬ 
men the lands wrongfully seized from 
them. 


Magna Charta 


15 


LX 1 

As for all such things, whereof any Welchmen have been disseized 
or esloined, without lawful judgment of their peers, by King Henry our 
father, or by King Richard our brother, which we have in our hands, 
or which any others have, to whom we are bound to warrant the same, 
we will have respite till the common term be expired of all that 
crossed themselves for the Holy Land, those things excepted where¬ 
upon suits were commenced, or inquests taken by our order before we 
took upon us the cross; and when we shall return from our pilgrimage 
or if, peradventure, we forbear going, we will presently cause full 
right to be done therein, according to the laws of Wales, and before 
the said parties. 

LXI 2 

We will forthwith restore the son of Lewelyn, and all the hostages 
of Wales, and the deed that have been delivered to us for security of 
the peace. 

LXI I® 

We will deal with Alexander, King of Scotland, as to the restoring 
him his suitors and his hostages, his franchises and rights, as we do 
with our other barons of England, unless it ought to be otherwise by 
virtue of the charters which we have of his father William, late King 
of Scotland; and this is to be by the judgment of his peers in our 
court. 

LXIII 4 

All these customs and franchises aforesaid, which we have granted 
to be kept in our kingdom, so far forth as we are concerned, towards 
our men, all persons of the kingdom, clerks and lay, must observe for 
their parts towards their men. 


LXIV 5 


And, whereas, we have granted all these things for God’s sake, 
and for the amendment of our government, and for the better com¬ 
promising the discord arisen betwixt us and our barons: we, willing 
that the same be firmly held and established forever, do make and 
grant to our barons the security underwritten; to wit, That the barons 
shall chuse five and twenty barons of the Realm, whom they list, who 
shall, to their utmost power, keep and hold, and cause to be kept, the 
peace and liberties which we have granted and confirmed by this our 
present charter; insomuch, that if we, or our justice, or our bailiff, or 
any of our ministers, act contrary to the same in anything, against 
any persons, or offend against any article in this peace and security, 
and such our miscarriage be shewn to four barons of the said five 


J This related to lands taken by 
John’s predecessors, Henry II and 
Richard I. 

2 This is self-explanatory. 

8 These were wrongfully held by 
John as hostages and this chapter 
was to procure their surrender and 
freedom. 


4 This required the barons to ob¬ 
serve the golden rule, to do unto their 
tenants and vassals as they required 
John to do unto them. 

Chapters LXIV, LXV, LXVI, 
LX VII and LXVIII provide for a 
council, the prototype of Parliament, 
whose duty was to see that the 
charter was enforced. 


16 


Magna Charta 


and twenty, those four barons shall come to us, or to our justice, if 
we be out of the realm, and shew us our miscarriage, and require us 
to amend the same without delay; and if we do not amend it, or if 
we be out of the realm, our justice do not amend it within forty days 
after the same is shewn to us, or to our justice if we be out of the 
realm, then the four barons shall report the same to the residue of 
the said five and twenty barons; and then those five and twenty 
barons, with the commonalty of England, may distress us by all the 
ways they can; to wit, by seizing on our castles, lands, and posses¬ 
sions, and by what other means they can, till it be amended, as they 
shall adjudge; saving our own person, the person of our Queen, and 
the persons of our children: and when it is amended, they shall be 
subject to us as before. And whoever of the realms will, may swear, 
that for the performance of these things he will obey the commands 
of the said five and twenty barons, and that, together with them, he 
will distress us to his power; and we will give public and free leave 
to swear to all that will swear, and will never hinder any one; and 
for all persons of the realm, that of their own accord will swear to 
the said five and twenty barons to distress us, we will issue our pre¬ 
cept, commanding them to swear as aforesaid. 

LXV 

And if any of the said five and twenty barons die, or go out of the 
realm, or be any way hindered from acting as aforesaid, the residue 
of the said five and twenty barons shall chuse another in his room, 
according"to their discretion, who shall swear as the others do. 

LXVI 

And as to all things which the said five and twenty barons are to 
do, if, peradventure, they be not present, or cannot agree, or in case 
any of those that are summoned cannot or will not come, whatever 
shall be determined by the greater number of them that are present, 
shall be good and valid, as if all had been present. 

LXVI I 

And the said five and twenty barons shall swear that they will 
faithfully observe all the matters aforesaid, and cause them to be ob¬ 
served to their power. 

LXVI 11 

And we will not obtain of any for ourselves, or for any other, any¬ 
thing whereby any of these concessions, or of these liberties may be 
revoked or annihilated; and if any such thing be obtained, it shall 
be null and void, nor shall ever be made use of by ourselves or any 
other. 


LXIX 1 

And all ill-will, disdain, and rancour, which has been between us 
and our subjects of the clergy and laity since the said discord began, 
we do fully release and pardon to them all. And moreover, all tres- 

1 This was a full and complete par- any acts of hostility against the 
don of all who had engaged in war or Crown. 


Magna Cliarta 


17 


passes that have been committed by the occasion of the said discord 
since Easter, in the sixteenth of our reign, to the restoring of the 
peace, we have fully released to all clerks and laymen; and so far as 
in us lies we have fully pardoned them: And further, we have caused 
letters patent to be made to them in testimony hereof, witnessed by 
Stephen, archbishop of Canterbury, Henry, archbishop of Dublin, and 
by the aforesaid bishops, and by Mr. Pandulphus, upon this security 
and these concessions. Whereby, we will and strictly command, that 
the church of England be free, and enjoy all the said liberties, and 
rights, and grants, well and in peace, freely and quietly, fully and en¬ 
tirely to them and their heirs, in all things, in all places, and forever 
as aforesaid. And we and our barons have sworn that all things above 
written, shall be kept on our parts, in good faith, without ill design. 
The witnesses are the persons above-named and many others. 

LXX 

This charter was given at the meadow called Running-Mead, be¬ 
twixt Windsor and Stanes, the fifteenth day of June, in the seventeenth 
year of our reign. 

JOHN, by the grace of God, King of England, to the sheriff of Hamp¬ 
shire, and to the twelve that are chosen in that county, to enquire of, 
and put away, the evil customs of the sheriffs, and of their ministers, 
of forests and foresters, of warrens and warreners, or rivers, and 
of guarding them, greeting. We command you, that without delay, 
you seize into our hand, the lands and tenements, and the goods of 
all those of the county of Southampton, that will not swear to the 
said five and twenty barons, according to the form expressed in our 
charter of liberties, or to such as they shall swear presently, at the 
end of fifteen days after their lands, and tenements, and chattels are 
seized into our hands, that ye sell all their goods, and keep safely the 
money that shall receive for the same, to be employed for the relief 
of the holy land of Jerusalem; and that ye keep their lands and 
tenements in our hands till they have sworn, or that Stephen, arch¬ 
bishop of Canterbury, and the barons of our kingdom have given 
judgment thereupon. In witness whereof, we direct unto you these 
our letters patent. Witness ourself: at Odibaam, the seven and 
twentieth day of June, in the seventeenth year of our reign. 


THE COLONIES 

The American Colonies were mere corporations, created by kings, 
subject to visitorial power, exercised through the Privy Council, and 
Courts, to dissolve them for breaches of charter rights. The thir¬ 
teen, which formed the United States, were divided by historians 
into three classes, Charter, Crown and Proprietary. Foster on the 
Constitution, Vol. 1, p. 311. 

Previous to the War of Independence, the Thirteen political com¬ 
munities which afterward became the original states of the American 
Union were colonies of Great Britain. Three forms of government 
obtained in the colonies: (a) Provincial, (b) Proprietary, (c) Char¬ 
ter. Black on Constitutional Law, 31f. 

The government of the colonies had always been treated as a part 
of the crown’s prerogative with which Parliament did not interfere, 
except in so far as the regulation of commerce was concerned. The 
colonial lawyers claimed that the Stamp Act was not binding, as an 
infringement of the prerogative; while they stirred up the people with 
the cry that taxation without representation was tyranny. 

The colonists were accustomed to having the statutes passed by 
their legislatures set aside as in conflict with a fundamental law. 
Their legislative powers were limited by their charters, which, like 
those of municipal or private corporations, permitted no legislation 
in conflict with the principles of the common law. Bills which they 
passed affecting private rights as well as the crown’s prerogative were 
always subject to the disapproval of the Privy Council, which usually 
acted in accordance with the opinions grounded upon legal precedents 
written by the law-officers of the crown. Foster on the Constitution, 
Vol. 1. p. 32. 

Union of the Colonies 

The British colonies never constituted one people. Judge Story, 
in his “Commentaries” on the Constitution, seems to imply the con¬ 
trary, though he shrinks from a direct assertion of it, and clouds the 
subject by a confusion of terms, tie says: “Now, it is apparent that 
none of the colonies before the Revolution were, in the most large and 
general sense, independent or sovereign communities. They were all 
originally settled under and subjected to the British Crown.” And then 
he proceeds to show that they were, in their colonial condition, not 
sovereign —a proposition which nobody disputed. As colonies, they 
had no claim, and made no pretension, to sovereignity. They were 
subject to the British Crown, unless, like the Plymouth colony, “a law 
unto themselves,” but they were independent of each other —the only 
point which has any bearing upon their subsequent relations. There 
was no other bond between them than that of their common alle¬ 
giance to the Government of the mother-country. As an illustration of 
this may be cited the historical fact that, when John Stark, of Ben¬ 
nington memory, was before the Revolution engaged in a hunting 
expedition in the Indian country, he was captured by the savages and 


18 


The Colonies 


19 


brought to Albany, in the colony of New York, for a ransom; but, in¬ 
asmuch as he belonged to New Hampshire, the government of New 
York took no action for his release. Davis on The Rise and Fall of 
The Confederate Government, Vol. 1, p. 115. 

Another citation of Mr. Everett is from the first sentence of the 
Declaration of Independence: “When in the course of human events 
it becomes necessary for one people to dissolve the political bands 
which have connected them with another,” etc., etc. This, he says, 
characterizes “the good people of the colonies as ‘one people.’ ” 

Plainly, it does no such thing. The misconception is so palpable 
as scarcely to admit of serious answer. The Declaration of Independ¬ 
ence opens with a general proposition. “One people” is equivalent to 
saying “any people.” The use of the correlatives “one” and “another” 
was the simple and natural way of stating this general proposition. 
Davis on The Rise and Fall of The Confederate Government, Vol. 1 , 

p. 118. 

President Monroe, in one of his messages to Congress, gives a his¬ 
tory of colonial government and how it passed into state governments, 
and shows, that even then it was separate and distinct. Messages of 
Presidents, Vol. 2, p. Urf. 

It was as “ United States” —not as a state, or united people—that 
these colonies—still distinct and politically independent of each other 
—asserted and achieved their independence of the mother country. 
As “United States” they adopted the Articles of Confederation, in 
which the separate sovereignty, freedom, and independence of each 
distinctly asserted. They were “United States” when Great Britain 
acknowledged the absolute freedom and independence of each, dis¬ 
tinctly and separately recognized by name. France and Spain were 
parties to the same treaty, and the French and Spanish idioms still 
express and perpetuate, more exactly than the English, the true idea 
intended to be embodied in the title— les Estas Unis, or los Estados 
Unidos —the States United. 

It was without, any change of title—still as “United States”—with¬ 
out any sacrifice of individuality—without any compromise of sov¬ 
ereignty—that the same parties entered into a new and amended com¬ 
pact with one another under the present Constitution. Larger and 
more varied powers were conferred upon the common Government 
for the purpose of insuring “a more perfect union”—not for that of 
destroying or impairing the integrity of the contracting members. 
Davis on The Rise and Fall of The Confederate Government, Vol. 1, 
p. 118-9. 

Relations of Colonies to Each Other and Their Mother Country- 

Bound by a common allegiance and absolutely controlled in their 
exterior relations by the mother country, the colonies before the 
Revolution were yet as regards each other practically independent, 
that is, distinct one from the other. Their common intercourse more 
or less frequent, the contiguity of their boundaries, their conflicting 
claims in many instances of authority over undefined and outlying 
territory, of necessity brought about conflicting contentions between 


20 


The Colonies 


them. As these contentions became more and more irritating, if not 
seriously acute, the necessity for the creation of some means of set¬ 
tling them became more and more urgent if physical conflict was to 
be avoided. And for this reason, it is to be assumed, it early came to 
pass that differences between the colonies were taken to the Privy 
Council for settlement and were there considered and passed upon 
during a long period of years, the sanction afforded to the conclusions 
of that body being the entire power of the realm, whether exerted 
through the medium of a royal decree or legislation by Parliament'. 
This power, it is undoubtedly true, was principally called into play 
in cases of disputed boundary, but that it was applied also to the 
complaint of an individual against a colony concerning the wrongful 
possession of property by the colony alleged to belong to him is not 
disputed. This general situation as to the disputes between the col¬ 
onies and the power to dispose of them by the Privy Council was 
stated in Rhode Island v. Massachusetts, 12 Pet. 657, 739, 9 L. Ed. 
1233, et seq., and will be found reviewed in the authorities referred to 
in the margin. 

When the Revolution came and the relations with the mother 
country were served indisputably, controversies between some of the 
colonies of the greatest moment to them had been submitted to the 
Privy Council and were undetermined. The necessity for their con¬ 
sideration and solution was obviously not obscured by the struggle 
for independence which ensued, for, by the ninth of the Articles of 
Confederation an attempt to provide for them as well as for future 
controversies was made. Without going into detail it suffices to say 
that that article in express terms declared the Congress to be the 
final arbiter of controversies between the states and provided ma¬ 
chinery for bringing into play a tribunal which had power to decide 
the same. That these powers were exerted concerning controversies 
between the states of the most serious character again cannot be 
disputed. But the mechanism devised for their solution proved un¬ 
availing because of a want of power in Congress to enforce the find¬ 
ings of the body charged with their solution, a deficiency of power 
which was generic because resulting from the limited authority over 
the states conferred by the Articles of Confederation on Congress as 
to every subject. That this absence of power to control the govern¬ 
mental attributes of the states for the purpose of enforcing findings 
concerning disputes between them gave rise to the most serious con¬ 
sequences and brought the states to the very verge of physical strug¬ 
gle and resulted in the shedding of blood and would, if it had not 
been for the adoption of the Constitution of the United States, it may 
be reasonably assumed, have rendered nugatory the great results of 
the Revolution, is known to all and will be found stated in the au¬ 
thoritative works on the history of the time. 38 Sup. Ct. Rept. No. Ilf, 
p. IfOJ,, May 15, 1918. 

The Continental Congress and the Articles of Confederation 

The first positive step towards the Union was the formation of the 
Continental Congress, a revolutionary body, which inaugurated the 


The Colonies 


23 


war, declared the independence of the colonies, and drafted certain 
articles of confederation. Upon the ratification of these articles by 
the states, the United States of America came into being.. Black on 
Constitutional Law, 36. 

Colonial Government 

In all the colonies the people claimed the right to enjoy all the 
liberties, privileges, and immunities of British subjects, including 
those safeguards against royal or governmental oppression which had 
been gradually evolved in the course of English history, and the 
benefit of the common law, in so far as the same was applicable to 
their needs and their situation. They also claimed that, for all pur¬ 
poses of domestic and internal regulation, their own legislatures pos¬ 
sessed entire and exclusive authority. In all matters of this sort, it 
was strenuously denied that parliament possessed the power to legis¬ 
late directly for the colonies. England’s financial straits having 
forced her to attempt the levy and collection of taxes in the colonies, 
by act of parliament without the concurrence of the local legislatures, 
the power to tax the people without representation on their part was 
stoutly resisted and denied, and this was one of the causes which led 
to the revolt of the colonies. Black on Constitutional Laws, 35. 

The State Constitutions are the oldest things in the political his¬ 
tory of America, for they are the continuations and representatives of 
the royal colonial charters, whereby the earliest English settlements 
in America were created, and under which their several local gov¬ 
ernments were established, subject to the authority of the English 
Crown and ultimately of the British Parliament. Bryce's American 
Commonwealth, Vol. 1, p. 413. 

When, in 1776, the thirteen colonies threw off their alliance to 
King George III, and declared themselves independent States, the 
colonial charter naturally became the State Constitution. In most 
cases it was remodelled, with large alterations, by the revolting colony. 
But in three States it was maintained unchanged, except, of course, 
so far as Crown authority was concerned, viz: in Massachusetts till 
1780, in Connecticut till 1818, and in Rhode Island till 1842. The other 
twenty-five States admitted to the Union in addition to the original 
thirteen, have all entered it as organized self-governing communities, 
with their Constitutions already made by their respective peoples. 
Each Act of Congress which admits a new State admits it as a sub¬ 
sisting commonwealth, recognizing rather than affecting to sanc¬ 
tion its Constitution. Congress may impose conditions which the 
State Constitution must fulfill. But the authority of the State Con¬ 
stitutions does not flow from Congress, but from acceptance by the 
citizens of the States for which they are made. Bryce's American 
Commonwealth, Vol. 1, pp. ^16-7. 

The State Constitutions of America well deserve to be compared 
with those of the self-governing British colonies. But one remarka¬ 
ble difference must be noted here. The constitutions of British col¬ 
onies have all proceeded from the Imperial Parliament of the United 
Kingdom, which retains its full legal power of legislating for every 




22 Declaration of Independence 

part of the British dominions. In many cases a colonial provides that 
it may be itself altered by the colonial legislature, of course with the 
assent of the Crown; but inasmuch as in its origin it is a statutory 
constitution, not self-grown, but planted as a shoot by the Imperial 
Congress, on the other hand, has no power to alter a State constitu¬ 
tion. And whatever power of alteration has been granted to a British 
colony is exercisable by the legislature of the colony, not, as in 
America, by the citizens at large. 

The original Constitutions of the States, whether of the old thirteen 
or of the new twenty-five, have been in nearly every case subsequently 
recast, in some instances five, six, or even seven times, as well as 
amended in particular points. Bryce's American Commonwealth, Vol. 

1, p. 1,18. 

Steps Toward Union 

In July, 1776, the Congress of the thirteen united colonies declared 
that “these colonies are, and of right ought to be, free and independ¬ 
ent States.” The denial of this asserted right and the attempted co¬ 
ercion made it manifest that a bond of union was necessary, for the 
common defense. 

In November of the next year, viz., 1777, articles of confederation 
and perpetual union were entered into by the thirteen States under 
the style of “The United States of America.” The government insti¬ 
tuted was to be administered by a congress of delegates from the sev¬ 
eral States, and each State to have an equal voice in legislation. The 
Government so formed was to act through and by the States, and hav 
ing no power to enforce its requisitions upon the States, embarrass¬ 
ment was early realized in its efforts to provide for the exigencies 
of war. After the treaty of peace and recognition of the independence 
of the States, the difficulty of raising revenue and regulating com¬ 
merce was so great as to lead to repeated efforts to obtain from the 
States additional grants of power. Under the Articles of Confedera¬ 
tion no amendment of them could be made except by the unanimous 
consent of the States, and this it had not been found possible to ob¬ 
tain for the powers requisite to the efficient discharge of the func 
tions intrusted to the Congress. Hence arose the proceedings for a 
convention to amend the articles of confederation. The result was 
the formation of a new plan of government, entitled “The Constitu¬ 
tion of the United States of America.” Davis on The Rise and Fall of 
The Confederate Government, Vol. 1, p. 193. 

DECLARATION OF INDEPENDENCE 

IN CONGRESS, JULY 1,, 1776. 

THE UNANIMOUS DECLARATION OF THE THIRTEEN UNITED 

STATES OF AMERICA 

When, in the course of human events, it becomes necessary for one 
people to dissolve the political bands which have connected them with 
another, and to assume, among the powers of the earth, the separate 
and equal station to which the laws of nature and of nature’s God en¬ 
title them, a decent respect to the opinions of mankind requires that 
they should declare the causes which impel them to the separation. 


Declaration of Independence 


23 


We hold these truths to be self-evident:—that all men are created 
equal; that they are endowed by their Creator with certain unaliena¬ 
ble rights; that among these are life, liberty, and the pursuit of hap¬ 
piness. That to secure these rights, governments are instituted among 
men, deriving their just powers from the consent of the governed; 
that whenever any form of government becomes destructive of these 
ends, it is the right of the people to alter or to abolish it, and to in¬ 
stitute a new government, laying its foundation on such principles, 
and organizing its powers in such form, as to them shall seem most 
likely to effect their safety and happiness. Prudence, indeed, will 
dictate, that governments long established should not be changed for 
light and transient causes; and accordingly all experience hath shown 
that mankind are more disposed to suffer while evils are sufferable, 
than to right themselves by abolishing the forms to which they are 
accustomed. But when a long train of abuses and usurpations, pur¬ 
suing invariably the same object, evinces a design to reduce them un¬ 
der absolute despotism, it is their right, it is their duty, to throw off 
such government, and to provide new guards for their future security. 
Such has been the patient sufferance" of these colonies; and such is 
now the necessity which constrains them to alter their former systems 
of government. The history of the present king of Great Britain is a 
history of repeated injuries and usurpations, all having in direct ob¬ 
ject the establishment of an absolute tyranny over these States. To 
prove this, let facts be submitted to a candid world. 

He has refused his assent to laws the most wholesome and neces¬ 
sary for the public good. He has forbidden his governors to pass laws 
of immediate and pressing importance, unless suspended in their 
operation till his assent should be obtained: and when so suspended 
he has utterly neglected to attend to them. He has refused to pass 
other laws for the accommodation of large districts of people, unless 
those people would relinquish the right of representation in the legis¬ 
lature—a right inestimable to them, and formidable to tyrants only. 

He has called together legislative bodies at places unusual, uncom¬ 
fortable, and distant from the repository of their public records, for 
the sole purpose of fatiguing them into compliance with his measures. 

He has dissolved representative houses repeatedly, for opposing, 
with manly firmness, his invasions on the rights of the people. 

He has refused, for a long time after such dissolution, to cause 
others to be elected; whereby the legislative powers, incapable of 
annihilation, have returned to the people at large for their exercise; 
the State remaining, in the meantime, exposed to all the dangers of 
invasion from without and convulsions within. 

He has endeavored to prevent the population of these States; for 
that purpose obstructing the laws for naturalization of foreigners; 
refusing to pass others to encourage their migration hither, and rais¬ 
ing the conditions of new appropriations of lands. 

He has obstructed the administration of justice, by refusing his 
assent to laws for establishing judiciary powers. 

He has made judges dependent on his will alone, for the tenure of 
their offices and the amount and payment of their salaries. 

He has erected a multitude of new offices, and sent hither swarms 
of officers, to harass our people, and eat out their substance. 


Declaration of Independence 


24 


He has kept among us, in times of peace, standing armies, without 
the consent of our legislatures. 

He has affected to render the military independent of, and superior 
to tlie civil power. 

He has combined with others to subject us to a jurisdiction foreign 
to our constitution, and unacknowledged by our laws; giving his as¬ 
sent to their acts of pretended legislation: 

For quartering large bodies of armed troops among us: 

For protecting them, by a mock trial, from punishment for any 
murders which they should commit on the inhabitants of these States: 

For cutting off our trade with all parts of the world: 

For imposing taxes on us without our consent: 

For depriving us, in many cases, of the benefits of trial by jury: 

For transporting us beyond seas to be tried for pretended offenses. 

For abolishing the free system of English laws in a neighboring 
province, establishing therein an arbitrary government, and enlarging 
its boundaries, so as to render it at once an example and fit instrument 
for introducing the same absolute rule into these colonies: 

For taking away our charters, abolishing our most valuable laws, 
and altering, fundamentally, the forms of our government: 

For suspending our own legislatures, and declaring themselves in¬ 
vested with powers to legislate for us in all cases whatsoever. 

He has abdicated government here, by declaring us out of his pro¬ 
tection, and waging war against us. 

He has plundered our seas, ravaged our coasts, burnt our towns, 
and destroyed the lives of our people. 

He is at this time transporting large armies of foreign mercenaries 
to complete the works of death, desolation, and tyranny, already be¬ 
gun with circumstances of cruelty and perfidy scarcely paralleled in 
the most barbarous ages, and totally unworthy the head of a civilized 
nation. 

He has constrained our fellow-citizens, taken captive on the high 
seas, to bear arms against their country, to become the executioners 
of their friends and brethren, or to fall themselves by their hands. 

He has excited domestic insurrections among us, and has en 
deavored to bring on the inhabitants of our frontiers the merciless 
Indian savages, whose known rule of warfare is an undistinguished 
destruction of all ages, sexes, and conditions. 

In every stage of these oppressions we have petitioned for redress 
in the most humble terms: our repeated petitions have been answered 
only by repeated injury. A prince, whose character is thus marked 
by every act which may define a tyrant, is unfit to be the ruler of a 
free people. 

Nor have we been wanting in attentions to our British brethren. 
We have warned them, from time to time, of attempts by their legis¬ 
lature to extend an unwarrantable jurisdiction over us. We have re¬ 
minded them of the circumstances of our emigration and settlement 
here. We have appealed to their native justice and magnanimity, 
and we have conjured them by the ties of our common kindred to dis¬ 
avow these usurpations, which would inevitably interrupt our con 
sections and correspondence. They too have been deaf to the voice 


Declaration of Independence 


25 


of justice and consanguinity. We must, therefore, acquiesce in the 
necessity which denounces our separation, and hold them, as we hold 
the rest of mankind—enemies in war, in peace, friends. 

We, therefore, the representatives of the UNITED STATE'S OP 
AMERICA, in GENERAL CONGRESS assembled, appealing to the 
Supreme Judge of the World for the rectitude of our intentions, do, 
in the name and by authority of the good people of these colonies, 
solemnly publish and declare, that these United Colonies are, and of 
right ought to be, free and independent States; that they are ab¬ 
solved from all allegiance to the British crown, and that all political 
connection between them and the State of Great Britain is, and ought 
to be, totally dissolved; and that, as FREE AND INDEPENDENT 
STATES, they have full power to levy war, conclude peace, contract 
alliances, establish commerce, and to do all other acts and things 
which INDEPENDENT STATES may of right do. And, for the sup¬ 
port of this declaration, with a firm reliance on the protection of 
DIVINE PROVIDENCE, we mutually pledge to each other our lives, 
our fortunes, and our sacred honor. 

JOHN HANCOCK. 


New Hampshire 

Josiah Bartlett 
William Whipple 
Matthew Thornton 

Massachusetts Bay 

Samuel Adams 
John Adams 
Robert Treat Payne 
Elbridce Gerry 

Rhode Island, cC-c. 

Stephen Hopkins 
William Ellery 

Connecticut 

Roger Sherman 
Samuel Huntington 
William Williams 
Oliver Wolcott 

Neio York 

William Floyd 
Philip Livingston 
Francis Lewis 
Lew t is Morris 

New Jersey 

Richard Stockton 
John Witherspoon 
Francis Hopkinson 
John Hart 
Abraham Clark 


Pennsylvania 

Robert Morris 
Benjamin Rush 
Benjamin Franklin 
John Morton 
George Clymer 
James Smith 
George Taylor 
James Wilson 
George Ross 

Delaware 
C.esar Rodney 
George Read 
Thomas McKean 

Maryland 

Samuel Chase 
William Paca 
Thomas Stone 
Charles Carroll 
of Carrollton 

Virginia 

George Wytiie 
Richard Henry Lee 
Thomas Jefferson 
Benjamin Harrison 
Thomas Nelson, Jr. 
Francis Ligiitfoot Lee 
Carter Braxton 


26 


Declaration of Independence 


North Carolina 


Georgia 


William Hooper 
Joseph Hewes 
John Penn 


Button Gwinnett 
Lyman Hall 
George Walton 


South Carolina 

Edward Rutledge 
Thomas Heyward, Jr. 
Thomas Lynch, Jr. 
Arthur Middleton 


The Declaration of Independence, written by the inspired pen of 
Jefferson, was the Magna Charta of American freedom, the corner¬ 
stone of the temple of free thought, free speech, free press. “It sound¬ 
ed through the land like Roderick’s bugle-note in the Highlands; it 
rallied the wavering and cheered the firm; it removed doubt and 
fixed a purpose; it was the guide which leaving by-paths and cross¬ 
cuts, got into the plain, straight road and said to the wandering hosts, 
‘Come on’; it settled the debate, removed the doubt, fixed the resolu¬ 
tion; it burned the bridge; it crossed the dead line; it took the route 
toward that bourne from which no rebel returns save with a rope 
around his neck; it was a call to nationality, a watch-word, a rallying 
point; its official statement of ultimate aim and object becoming the 
pillar of fire which led the people through the darkest night of their 
dread journey toward the Republic.” Jefferson regarded the author¬ 
ship of that document worthy a place on his monument, because it 
ended civic “Tyranny over the human mind.” 18 Jefferson’s Writings, 
Prefatory Matter, vi, vii. (Mem. ed.J 

Mr. Jefferson thus states the origin and purpose of the Dec¬ 
laration of Independence: 

With respect to our rights, and the acts of the British government 
contravening those rights, there was but one opinion on this side of 
the water. All American Whigs thought alike on these subjects. 
When forced, therefore, to resort to arms for redress, an appeal to 
the tribunal of the world was deemed proper for our justification. 
This was the object of the Declaration of Independence. Not to find 
out new principles, or new arguments, never before thought of, not 
merely to say things which had never been said before; but to place 
before mankind the common-sense of the subject, in terms so plain 
and firm as to command their assent, and to justify ourselves in the in¬ 
dependent stand we are compelled to take. Neither aiming at origi¬ 
nality of principle or sentiment, nor yet copied from any particular 
and previous writing, it was intended to be an expression of the 
American mind, and to give to that expression the proper tone and 
spirit called for by the occasion. All its authority rests then on the 
harmonizing sentiments of the day, whether expressed in conversation, 
in letters, printed essays, or in the elementary books of public right, 
as Aristotle, Cicero, Locke, Sidney, etc. 16 Jefferson's Writings, 
(Mem. ed.), 11, 118-19. 


ARTICLES OF CONFEDERATION 


IN CONGRESS, JULY 9, 1778. 

ARTICLES OF CONFEDERATION AND PERPETUAL UNION 

Between the States of New Hampshire, Massachusetts Bay, Rhode 

Island and Providence Plantations, Connecticut, New York, New 

Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, 

South Carolina and Georgia. 

ARTICLE I 

The style of this confederacy shall be, “The United States of Amer - 
ica.” 

ARTICLE II 

Each state retains its sovereignty, freedom and independence, and 
every power, jurisdiction and right, which is not by this confederation 
expressly delegated to the United States, in Congress assembled. 

ARTICLE III 

The said states hereby severally enter into a firm league of 
friendship with each other for their common defense, the security of 
their liberties, and their mutual and general welfare, binding them¬ 
selves to assist each other against all the force offered to, or attacks 
made upon them, or any of them, on account of religion, sovereignty, 
trade, or any other pretense whatever. 

ARTICLE IV 

§1. The better to secure and perpetuate mutual friendship and 
intercourse among the people of the different States in this Union, the 
free inhabitants of each of these States, paupers, vagabonds, and 
fugitives from justice excepted, shall be entitled to all privileges and 
immunities of free citizens in the several states; and the people of 
each state shall have free ingress and egress to and from any other 
state, and shall enjoy therein all the privileges of trade and commerce 
subject to the same duties, impositions and restrictions as the in¬ 
habitants thereof respectively; Provided, that such restrictions shall 
not extend so far as to prevent the removal of property imported into 
any state to any other state of which the owner is an inhabitant; 
Provided, also, that no imposition, duties or restriction shall be laid 
by any state on the property of the United States, or either of them. 

§2. If any person guilty of or charged with treason, felony, or 
other high misdemeanor in any state shall flee from justice and be 
found in any of the United States, he shall, upon the demand of the 
governor or executive power of the state from which he fled, be de¬ 
livered up, and removed to the state having jurisdiction of his of¬ 
fense. 

§3. Full faith and credit shall be given in each of these states 
to the records, acts, and judicial proceedings of the courts and magis¬ 
trates of every other state. 


27 


28 


Articles of Confederation 


ARTICLE V 

§1. For the more convenient management of the general interests 
of the United States, delegates shall be annually appointed in such 
manner as the legislature of each state shall direct, to meet in Con¬ 
gress on the first Monday in November, in every year, with a power 
reserved to each state to recall its delegates, or any of them, at any 
time within the year, and to send others in their stead, for the re¬ 
mainder of the year. 

§2. No state shall be represented in congress by less than two, nor 
more than seven members; and no person shall be capable of being 
a delegate for more than three years in any term of six years; nor 
shall any person being a delegate be capable of holding any office un¬ 
der the United States for which he, or any other for his benefit, re¬ 
ceives any salary, fees, or emolument of any kind. 

§3. Each state shall maintain its own delegates in a meeting of 
the states, and while they act as members of the committee of these 
states. 

§4. In determining questions in the United States in congress as¬ 
sembled, each state shall have one vote. 

§5. Freedom of speech and debate in congress shall not be im¬ 
peached or questioned in any court or place out of congress, and the 
members of congress shall be protected in their persons from arrests 
and imprisonments during the time of their going to and from and at¬ 
tendance on congress, except for treason, felony, or breach of the 
peace. 

ARTICLE VI 

§1. No state, without the consent of the United States in congress 
assembled, shall send any embassy to, or receive any embassy from, 
or enter into any conference, agreement, alliance, or treaty, with any 
king, prince, or state; nor shall any person holding any office of profit 
or trust under the United States, or any of them, accept of any present, 
emolument, office, or title of any kind whatever, from any king, prince, 
or foreign state; nor shall the United States in congress assembled, 
or any of them, grant any title of nobility. 

§2. No two or more states shall enter into any treaty, confedera¬ 
tion or alliance whatever, between them, without the consent of the 
United States in congress assembled, specifying accurately the pur¬ 
poses for which the same is to be entered into, and how long it shall 
continue. 

§3. No state shall lay any imposts or duties which may interfere 
with any stipulations in treaties entered into by the United States in 
congress assembled, with any king, prince, or state, in pursuance of 
any treaties already proposed by congress to the courts of France and 
Spain. 

§4. No vessels of war shall be kept up in time of peace by any 
state, except such number only as shall be deemed necessary by the 
United States in congress assembled, for the defense of such state or 
its trade; nor shall any body of forces be kept up by any state in time 
of peace, except such number only as in the judgment of the United 
States in congress assembled, shall be deemed requisite to garrison 
the forts necessary for the defense of such state; but every state 


Articles of Confederation 


29 


shall always keep up a regular and well-disciplined militia, sufficiently 
armed and accoutred, and shall provide and constantly have ready 
for use in public stores a due number of field pieces and tents, and a 
proper quantity of arms, ammunition and camp equipage. 

§5. No state shall engage in any war without the consent of the 
United States in congress assembled, unless such state be actually in¬ 
vaded by the enemies, or shall have received certain advice of a resolu¬ 
tion being formed by some nation of Indians to invade such state, 
and the danger is so imminent as not to admit of delay till the United 
States in congress assembled can be consulted; nor shall any state 
grant commissions to any ships or vessels of war, nor letters of 
marque or reprisal, except it be after a declaration of war by the 
United States in congress assembled, and then only against a king¬ 
dom or state, and the subjects thereof, against which war has been so 
declared, and under such regulations as shall be established by the 
United States in congress assembled, unless such state be infested by 
pirates, in which case vessels of war may be fitted out for that oc¬ 
casion and kept so long as the danger shall continue, or until the 
United States in congress assembled shall determine otherwise. 

ARTICLE VII 

When land forces are raised by any state for the common defense, 
all officers of or under the rank of colonel shall be appointed by the 
legislature of each state respectively by whom such forces shall be 
raised, or in such manner as such state shall direct, and all vacancies 
shall be filled up by the state which first made the appointment. 

ARTICLE VIII 

All charges of war, and all other expenses that shall be incurred 
for the common defense or general welfare, and allowed by the United 
States in congress assembled, shall be defrayed out of a common 
treasury, which shall be supplied by the several states, in proportion 
to the value of all land within each state, granted to or surveyed for 
any person, as such land and the buildings and improvements thereon 
shall be estimated, according to such mode as the United States in 
congress assembled shall, from time to time, direct and appoint. The 
taxes for paying that proportion shall be laid and levied by the au¬ 
thority and direction of the legislatures of the several states, within 
the time agreed upon by the United States in congress assembled. 

ARTICLE IX 

§1. The United States in congress assembled shall have the sole 
and exclusive right and power of determining on peace and war, ex¬ 
cept in the cases mentioned in the sixth article, of sending and re¬ 
ceiving ambassadors, entering into treaties and alliances; Provided , 
that no treaty of commerce shall be made whereby the legislative 
power of the respective states shall be restrained from imposing such 
imposts and duties on foreigners as their own people are subjected 
to, or from prohibiting the exportation or importation of any species 
of goods or commodities whatsoever; of establishing rules for decid¬ 
ing, in all cases, what captures on land or water shall be legal, and in 
what manner prizes taken by land or naval forces in the service of 


30 


Articles of Confederation 


the United States shall be divided or appropriated; of granting let¬ 
ters of marque and reprisal in times of peace; appointing courts for 
the trial of piracies and felonies committed on the high seas; and 
establishing courts for receiving and determining finally appeals in 
all cases of captures; Provided, that no member of congress shall be 
appointed a judge of any of the said courts. 

§2. The United States in congress assembled shall also be the last 
resort on appeal in all disputes and differences now subsisting, or 
that hereafter may arise between two or more states concerning 
boundary, jurisdiction, or any other cause whatever; which authority 
shall always be exercised in the manner following: Whenever the 
legislative or executive authority, or lawful agent of any state in con¬ 
troversy with another, shall present a petition to congress stating the 
matter in question and praying for a hearing, notice thereof shall be 
given by order of congress to the legislative or executive authority of 
the other state in controversy, and a day assigned for the appearance 
of the parties by their lawful agents, who shall then be directed to 
appoint, by joint consent, commissioners or judges to constitute a court 
for hearing and determining the matter in question; but if they can¬ 
not agree, congress shall name three persons out of each of the 
United States, and from the list of such persons each party shall al¬ 
ternately strike out one, the petitioners beginning, until the number 
shall be reduced to thirteen; and from that number not less than 
seven nor more than nine names, as congress shall direct, shall, in the 
presence of congress, be drawn out by lot; and the persons whose 
names shall be drawn, or any five of them, shall be commissioners or 
judges to hear and finally determine the controversy, so always as a 
major part of the judges who shall hear the cause shall agree in the 
determination; and if either party shall neglect to attend at the day 
appointed, without showing reasons which congress shall judge suffi¬ 
cient; or being present, shall refuse to strike, the congress shall pro¬ 
ceed to nominate three persons out of each state, and the secretary of 
congress shall strike in behalf of such party absent or refusing; and 
the judgment and sentence of the court, to be appointed in the man¬ 
ner before prescribed, shall be final and conclusive; and if any of the 
parties shall refuse to submit to the authority of such court, or to 
appear or defend their claim or cause, the court shall nevertheless 
proceed to pronounce sentence or judgment, which shall in like man¬ 
ner be final and decisive; the judgment or sentence and other pro¬ 
ceedings being in either case transmitted to congress, and lodged 
among the acts of congress, for the security of the parties concerned; 
Provided, also, that no state shall be deprived of territory for the 
take an oath, to be administered by one of the judges of the supreme 
or superior court of the state where the cause shall be tried, “well 
and truly to hear and determine the matter in question, according to 
the best of his judgment, without favor, affection, or hope of reward;” 
Provided, also, that no state shall be deprived of territory for the- 
benefit of the United States. 

§3. All controversies concerning the private right of soil claimed 
under different grants of two or more states, whose jurisdictions, as 
they may respect such lands, and the states which passed such grants 
are adjusted, the said grants or ei':her of them being at the same time: 


Articles of Confederation 


31 


claimed to have originated antecedent to such settlement of jurisdic¬ 
tion, shall, on the petition of either party to the congress of the United 
States, he finally determined, as near as may be, in the same manner, 
as is before prescribed for deciding disputes respecting territorial 
jurisdiction between different states. 

§4. The United States in congress assembled shall also have the 
sole and exclusive right and power of regulating the alloy and value 
of coin struck by their own authority, or by that of the respective 
states; fixing the standard of weights and measures throughout the 
United States; regulating the trade and managing all affairs with the 
Indians not members of any of the states; Provided, that the legisla¬ 
tive right of any state, within its own limits, be not infringed or 
violated; establishing and 'regulating post-offices from one state to 
another throughout all the United States, and exacting such postage 
on the papers passing through the same as may be requisite to defray 
the expenses of the said office; appointing all officers of the land 
forces in the service of the United States, excepting regimental offi¬ 
cers; appointing all the officers of the naval forces, and commissioning 
all officers whatever in the service of the United States; making rules 
for the government and regulation of the said land and naval forces, 
and directing their operations. 

§5. The United States in congress assembled shall have authority 
to appoint a committee, to sit in the recess of congress, to be de¬ 
nominated “A Committee of the States,” and to consist of one delegate 
from each state; and to appoint such other committees and civil offi¬ 
cers as may be necessary for managing the general affairs of the 
United States under their direction; to appoint one of their number 
to preside; Provided, That no person be allowed to serve in the of¬ 
fice of president more than one year in any term of three years; to 
ascertain the necessary sums of money to be raised for the service 
of the United States, and to appropriate and apply the same for de¬ 
fraying the public expenses; to borrow money or emit bills on the 
credit of the United States, transmitting every half year to the re¬ 
spective states an account of the sums of money so borrowed or 
emitted; to build and equip a navy; to agree upon the number of land 
forces, and to make requisitions from each state for its quota, in pro¬ 
portion to the number of white inhabitants in such state, which requi¬ 
sition shall be binding; and thereupon the legislature of each state 
shall appoint the regimental officers, raise the men, clothe, arm and 
equip them, in a soldier-like manner, at the expense of the United 
States; and the officers and men so clothed, armed and equipped, shall 
march to the place appointed, and within the time agreed on by the 
United States in congress assembled; but if the United States in con¬ 
gress assembled shall, on consideration of circumstances, judge proper 
that any state should not raise men, or should raise a smaller number 
than its quota, and that any other state should raise a greater num¬ 
ber of men than the quota thereof, such extra number shall be raised, 
officered, clothed, armed and equipped in the same manner as the 
quota of such state, unless the legislature of such state shall judge 
that such extra number cannot be safely spared out of the same, in 
which case they shall raise, officer, clothe, arm and equip as many of 
such extra number as they judge can be safely spared, and the offi- 


32 


Articles of Confederation 


cers and men so clothed, armed and equipped, shall march to the place 
appointed, and within the time agreed on by the United States in con¬ 
gress assembled. 

§6. The United States in congress assembled shall never engage in 
a war, nor grant letters of marque and reprisal in time of peace, nor 
enter into any treaties or alliances, nor coin money, nor regulate the 
value thereof, nor ascertain the sums and expenses necessary for the 
defense and welfare of the United States, or any of them, nor emit 
bills, nor borrow money on the credit of the United States, nor ap¬ 
propriate money, nor agree upon the number of vessels of war to be 
built or purchased, or the number of land or sea forces to be raised, 
nor appoint a commander-in-chief of the army or navy, unless nine 
states assent to the same, nor shall a question on any other point, ex¬ 
cept for adjourning from day to day, be determined, unless by the 
vote of a majority of the United States in congress assembled. 

§7. The Congress of the United States shall have power to adjourn 
to any time within the year, and to any place within the United States, 
so that no period of adjournment be for a longer duration than the 
space of six months, and shall publish the journal of their proceedings 
monthly, except such parts thereof relating to treaties, alliances, or 
military operations, as in their judgment require secrecy; and the 
yeas and nays of the delegates of each state, on any question, shall 
be entered on the journal when it is desired by any delegate; and the 
delegates of a state, or any of them, at his or their request, shall be 
furnished with a transcript of the said journal, except such parts as 
are above excepted, to lay before the legislatures of the several states. 

ARTICLE X 

The committee of the states, or any nine of them, shall be author¬ 
ized to execute, in the recess of congress, such of the powers of con¬ 
gress as the United States in congress assembled, by the consent of 
nine states, shall, from time to time, think expedient to vest them 
with; Provided, that no power be delegated to the said committee for 
the exercise of which, by the Articles of Confederation, the voice of 
nine states, in the congress of the United States assembled, is requisite. 

ARTICLE XI 

Canada acceding to this confederation, and joining in the measures 
of the United States, shall be admitted into and entitled to all the 
advantages of this Union; but no other colony shall be admitted into 
the same, unless such admission be agreed to by nine states. 

ARTICLE XII 

All bills of credit emitted, moneys borrowed, and debts contracted 
by or under the authority of congress, before the assembling of the 
United States, in pursuance of the present confederation, shall be 
deemed and considered as a charge against the United States, for the 
payment and satisfaction whereof the said United States and the public 
faith are hereby solemnly pledged. 

ARTICLE XIII 

Every state shall abide by the determination of the United States, 
in congress assembled, in all questions which by this confederation 


Articles of Confederation 


33 


are submitted to them; and the articles of this confederation shall be 
inviolably observed by every State, and the Union shall be perpetual; 
nor shall any alteration at any time hereafter be made in any of 
them, unless such alteration be agreed to in a congress of the United 
States, and be afterward confirmed by the legislature of every state. 

And whereas, it hath pleased the great Governor of the world to 
incline the hearts of the legislatures we respectfully represent in con¬ 
gress, to approve of, and to authorize us to ratify the said Articles of 
Confederation and perpetual union, Know ye, that we, the under¬ 
signed delegates, by virtue of the power and authority to us given 
for that purpose, do, by these presents, in the name and in behalf of 
our respective constituents, fully and entirely ratify and confirm each 
and every of the said Articles of Confederation and perpetual union, 
and all and singular the matters and things therein contained. And 
we do further solemnly plight and engage the faith of our respective 
constituents, that they shall abide by the determination of the United 
States in congress assembled, in all questions which by the said con¬ 
federation are submitted to them; and that the articles thereof shall 
be inviolably observed by the States we respectfully represent, and 
that the union shall be perpetual. In witness whereof, we have here¬ 
unto set our hands, in congress. 

Done at Philadelphia in the State of Pennsylvania, the 9th day of 
July, in the year of our Lord, 1778, and_ in the third year of the 
Independence of America. 


New Hampshire 

Josiah Bartlett 
John Wentworth, Jr. 

Massachusetts Bay 

John Hancock 
Samuel Adams 
Elbridge Gerry 
Francis Dana 
James Lovel 
Samuel Holten 
William Ellery 
Henry Marchant 
John Collins 

Pennsylvania 

Robert Morris 
Daniel Roberdeau 
Jona. Bayard Smith 
William Clingan 
Joseph Reed 

Delaware 

Thos. M’Kean 
John Dickinson 
Nicholas Vandyke 


Maryland 

John Hanson 
Daniel Carroll 

Virginia 

Richard Henry Lee 
John Bannister 
Thomas Adams 
Jno. Harvie 
Francis Lightfoot Lee 

Connecticut 

Roger Sherman 
Samuel Huntington 
Oliver Wolcott 
Titus Hosmer 
Andrew Adams 

New York 

Jas. Duane 
Fra. Lewis 
Wm. Duer 
Gouv. Morris 

New Jersey 

Jno. Witherspoon 
Nath. Scudder 


34 


Articles of Confederation 


North Carolina 


Georgia 


John Penn 
Corns. Harnett 
Jno. Williams 


Jno. Walton 
Edw. Telfair 
Edwd. Langworthy 


South Carolina 

Henry Laurens 
William Henry Drayton 
Jno Matthews 
Richard Hutson 
Thomas Heyward, Jr. 


The Federal government was created in 1777 by the union of thir¬ 
teen colonies of Great Britain in “certain articles of confederation 
and perpetual union,” the first one of which declared that “the stile 
of this confederacy shall be the United States of America.” Each 
member of the confederacy was denominated a State. Provision was 
made for the representation of each State by not less than two nor 
more than seven delegates; but no mention was made of territories or 
other lands, except in Art. XI, which authorized the admission of 
Canada, upon its “acceding to this confederation,” and of other col¬ 
onies if such admission were agreed to by nine States. At this time 
several States made claims to large tracts of land in the unsettled 
West, which they were at first indisposed to relinquish. Disputes over 
these lands became so acrid as nearly to defeat the confederacy, before 
it was fairly put in operation. Several of the States refused to ratify 
the articles, because the convention had taken no steps to settle the 
titles to these lands upon principles of equity and sound policy; but 
all of them, through fear of being accused of disloyalty, finally yielded 
their claims, though Maryland held out until 1781. Most of these 
States in the meantime having ceded their interests in these lands, 
the confederate Congress, in 1787, created the first territorial govern¬ 
ment northwest of the Ohio River, provided for local self-government, 
a bill of rights, a representation in Congress by a delegate, who should 
have a seat “with a right of debating, but not of voting,” and for the 
ultimate formation of States therefrom, and their admission into the 
Union on an equal footing with the original States. 

The confederacy, owing to well-known historical reasons, having 
proven a failure, a new Constitution was formed in 1787 by “the peo¬ 
ple of the United States” “for the United States of America,” as its 
preamble declares. 182 TJ. S. Rep., pp. 2Jfi-250. 

When it became apparent that a war had been entered on which 
must result either in the destruction of American liberties or in the 
introduction to the world of a new nation, it was evident to all those 
interested in the conduct of public affairs that the revolutionary con¬ 
gress was at once too weak and too indefinite a bond between the 
states. It was necessary to devise a scheme of association which 
would insure vigor and faithful co-operation in the conduct of hostili¬ 
ties and would also more clearly apportion the powers of govern¬ 
ment between the states and the Congress. The Congress, to this 
end, prepared a series of “Articles of Confederation and Perpetual 


Articles of Confederation 


35 


Union,” and submitted them to the states for their approval and rati¬ 
fication in 1777. Before the close of the following year the articles 
had been ratified by all the states except Delaware and Maryland. Of 
these, the former gave in its adherence in 1779, and the latter in 1781. 
Black, on Constitutional Laws, 37. 

The articles of confederation were designed to bind the states to¬ 
gether in a “firm league,” but they proved to be no better than a rope 
of sand. Washington spoke of the confederation as “a shadow with¬ 
out a substance” and described Congress as a “nugatory body.” The 
Union, as thus constituted, was dependent on the states. There was 
a central government, but it was not intrusted with the means of its 
own preservation. It had no executive; it had no courts; it had no 
power to raise supplies. “Congress had hardly more than an ad¬ 
visory power at the best. It had no power to prevent or punish of¬ 
fenses against its own laws, or even to perform effectively the duties 
enjoined upon it by the articles of confederation. It alone could de¬ 
clare war, but it had no power to compel the enlistment, arming, or 
support of an army. It alone could fix the needed amount of revenue, 
but the taxes could only be collected by the states at their own pleas¬ 
ure. It alone could make treaties with foreign nations, but it had no 
power to prevent individual states from violating them. Even com¬ 
merce, foreign and domestic, was to be regulated entirely by the 
states, and it was not long before state selfishness began to show itself 
in the regulation of duties on imports.” Black on Constitutional Laws , 
39. 

The new form of government differed in many essential particulars 
from the old one. The delegates, intent on the purpose to give greater 
efficiency to the government of the Union, proposed greatly to enlarge 
its powers, so much so that it was not deemed safe to confide them 
to a single body and they were consequently distributed between 
three independent departments of government, which might be a 
check upon one another. The Constitution did not, like the Articles 
of Confederation, declare that the States had agreed to a perpetual 
union, but distinctly indicated the hope of its perpetuity by the ex¬ 
pression in the preamble of the purpose to “secure the blessings of 
liberty to ourselves and our posterity.” The circumstances under 
which the Union of the Constitution was formed justified the hope of 
its perpetuity, but the brief existence of the Confederation may have 
been a warning against the renewal of the assertion that the compact 
should be perpetual. Davis on The Rise and Fall of The Confederate 
Government, Yol. 1, 194. 

These powers as proposed by the Constitution were so extensive 
as to create alarm and opposition by some -of the most influential men 
in many of the States. It is known that the objection of the patriot 
Samuel Adams was only overcome by an assurance that such an 
amendment as the tenth would be adopted. Like opposition was by 
like assurance elsewhere overcome. That article is in these words: 
“The powers not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States respec¬ 
tively or to the people.” 


36 


Articles of Confederation 


Amendment, however, of the delegated powers was made more easy 
than it had been under the Constitution. Ratification by three-fourths 
of the States was sufficient under the Constitution for the adoption 
of an amendment to it. This power of amendment threatens to be the 
Aaron’s rod which will swallow up the rest. Davis on The Rise and 
Fall of The Confederate Government , Vol. 1, 195. 

When the Articles of Confederation were amended, when the new 
Constitution was substituted in their place and the General Govern¬ 
ment reorganized, its structure was changed, additional powers were 
conferred upon it, and thereby subtracted from the powers theretofore 
exercised by the State governments; but the seat of the sovereignty 
—the source of all those delegated and dependent powers—was not 
disturbed. There was a new Government or an amended Government 
—it is entirely immaterial in which of these lights we consider it— 
but no now PEOPLE was created or constituted. The people, in whom 
alone sovereignty inheres, remained just as they had been before. 
The only change was in the form, structure, and relations of their 
governmental agencies. 

No doubt, the States—the people of the States—if they had been 
so disposed, might have merged themselves into one great consoli¬ 
dated State, retaining their geographical boundaries merely as mat¬ 
ters of convenience. But such a merger must have been distinctly 
and formally stated, not left to deduction or implication. 

Men do not alienate even an estate, without positive and express 
terms and stipulations. But in this case not only was there no ex¬ 
press transfer—no formal surrender—of the pre-existing sovereignty, 
but it was expressly provided that nothing should be understood as 
even delegated —that everything was reserved, unless granted in ex¬ 
press terms. The monstrous conception of the creation of a new peo¬ 
ple, invested with the whole or a great part of the sovereignty which 
had previously belonged to the people of each State, has not a syl¬ 
lable to sustain it in the Constitution, but is built up entirely upon 
the palpable misconstruction of a single expression in the preamble. 
Davis on The Rise and Fall of The Confederate Government, Vol. 1, 
15Jf-5. 

Defects and Vices of the Confederation 

Mr. Hamilton in the Federalist, Number XV, pointed out 
some of the greatest defects as follows: 

The great and radical vice in the construction of the existing 
Confederation is in the principle of LEGISLATION for STATES or 
GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACI¬ 
TIES, and as contradistinguished from the INDIVIDUALS of which 
they consist. Though this principle does not run through all the 
powers delegated to the Union, yet it pervades and governs those on 
which the efficacy, the United States has an indefinite discretion to 
make requisitions for men and money, but they have no authority to 
raise either, by regulations extending to the individual citizens of 
America. The consequence of this is, that though in theory their 


Articles of Confederation 


37 


resolutions concerning those objects are laws, constitutionally bind¬ 
ing on the members of the Union, yet in practice they are mere recom¬ 
mendations which the States observe or disregard at their option. 

It is a singular instance of the capriciousness of the human 
mind, that after all the admonitions we have had from experience on 
this head, there should still be found men who object to the new 
Constitution, for deviating from a principle which has been found 
the bane of the old, and which is in itself evidently incompatible with 
the idea of GOVERNMENT; a principle, in short, which, if it is to 
be executed at all, must substitute the violent and sanguinary agency 
of the sword to the mild influence of the magistracy. Hamilton in 
Federalist, Number XV. 

Government implies the power of making laws. It is essential to 
the idea of a law, that it is attended with a sanction; or, in other 
words, a penalty or punishment for disobedience. If there be no 
penalty annexed to disobedience, the resolutions or commands which 
pretend to be laws will, in fact, amount to nothing more than advice 
or recommendation. This penalty, whatever it may be, can only be 
inflicted in two ways: by the agency of the courts and ministers of 
justice, or by military force; by the COERCION of the magistracy, 
or by the COERCION of arms. The first kind can evidently apply 
only to men; the last kind must of necessity, be employed against 
bodies politic, or communities, or States. It is evident that there is 
no process or a court by which the observance of the laws can, in the 
last resort, be enforced. Sentences may be denounced against them 
for violations of their duty; but these sentences can only be carried 
into execution by the sword. Hamilton in Federalist, Number XV. 

The Articles of Confederation were ratified by the States, 
acting through their legislatures, the Constitution was ratified 
by the people of the States, through and by conventions. This 
is well stated in Number XXII of the Federalist: 

It has not a little contributed to the infirmities of the existing 
federal system, that it never had a ratification by the PEOPLE. Rest¬ 
ing on no better foundation than the consent of the several legisla¬ 
tures, it has been exposed to frequent and intricate questions con¬ 
cerning the validity of its powers, and has, in some instances, given 
birth to the enormous doctrine of a right of legislative repeal. Owing 
its ratification to the law of a State, it has contended that the same 
authority might repeal the law by which it was ratified. However 
gross a heresy it may be to maintain that a PARTY to a COMPACT 
has a right to revoke that COMPACT, the doctrine itself has had 
respectable advocates. The possibility of a question of this nature 
proves the necessity of laying the foundations of our national gov¬ 
ernment deeper than in the mere sanction of delegated authority. 
The fabric of American empire ought to rest on the solid basis of 
THE CONSENT OF THE PEOPLE. The streams of national power 
ought to flow immediately from that pure, original fountain of all 
legitimate authority. Hamilton in Federalist, Number XXII. 


38 


Ordinance of 1787 

Congress of the Confederation 

The difference between the Congress of the Confederation and that 
of the Federal Constitution is so broad that the action of the former 
can, in no just sense, be taken as a precedent for the latter. The Con¬ 
gress of the Confederation represented the States in their sovereignty, 
each delegation having one vote, so that all the States were of equal 
weight in the decision of any question. It had legislative, executive, 
and in some degree judicial powers, thus combining all departments 
of government in itself. During its recess a committee known as a 
Committee of the States exercised the powers of the Congress, which 
was in spirit, if not in fact, an assemblage of the States. 

On the other hand, the Congress of the Constitution is only the 
legislative department of the General Government, with powers 
strictly defined and expressly limited to those delegated by the States. 
It is further held in check by an executive and a judiciary, and con¬ 
sists of two branches, each having peculiar and specified functions. 
Davis on The Rise and Fall of the Confederate Government, Vol. 1, 
10 . 


The Differences Between Confederation and Union 

Mr. Calhoun thns states the differences: 

Our first experiment in government was on the old form of a sim¬ 
ple confederacy,—unmodified, and extending the principle of the con¬ 
curring majority alike to the Constitution (the articles of union) 
and to the Government which it constituted. It failed—and the 
present structure was reared in its place, combining, for the first time 
in a confederation, the absolute with the concurring majority; and 
thus uniting the justice of the one with the energy of the other. 

The new Government was reared on the foundation of the old, 
strengthened, but not changed. It stands on the same solid basis 
of the concurring majority, perfected by the sanction of the people of 
the States directly given, and not indirectly through the State gov¬ 
ernments, as their representatives, as in the old confederation. With 
this difference, the authority which made the two Constitutions— 
which granted their powers, and ordained and organized their re¬ 
spective Governments to execute them—is the same. 6 Calhoun's 
Works, p. 185. 


ORDINANCE OF 1787 

AN ORDINANCE 

For the government of the Territory of the United States northwest of 

the River Ohio. 

Be it ordained by the United States in Congress assembled, That 
the said territory, for the purpose of temporary government, be one 
district, subject, however, to be divided into two districts, as the fu¬ 
ture circumstances may, in the opinion of congress, make it expedient. 


Ordinance of 1787 


39 


Be it ordained by the authority aforesaid, That the estates both of 
residents and non-resident proprietors in the said territory, dying in¬ 
testate, shall descend to, and be distributed among their children, 
and the descendants of a deceased child, in equal parts, the descend¬ 
ants of a deceased child or grandchild to take the share of their de¬ 
ceased parent in equal parts among them; and where there shall be 
no children or descendants, then in equal parts to the next of kin in 
equal degree, and among collaterals, the children of a deceased brother 
or sister of an intestate shall have, in equal parts among them, their 
deceased parent’s share, and there shall, in no case, be a distinction be¬ 
tween kindred of the whole and half blood, saving, in all cases, to the 
widow of the intestate her third part of the real estate for life, and 
one-third of the personal estate; and this law relative to descents and 
dower shall remain in full force until altered by the legislature of the 
district; and until the governor and judges shall adopt laws, as here¬ 
inafter mentioned, estates in the said territory may be devised or be¬ 
queathed by wills in writing, signed and sealed by him or her in whom 
the estate may be (being of full age), and attested by three witnesses; 
and real estates may be conveyed by lease and releases, or bargain 
and sale, signed, sealed and delivered by the person (being of full age) 
in whom the estates may be, and attested by two witnesses; Provided, 
that such wills be duly proved, and such conveyances be acknowledged 
or the execution thereof duly proved, and be recorded within one year 
after proper magistrates, courts, and registers shall be appointed for 
that purpose; and personal property may be transferred by delivery, 
saving, however, to the French and Canadian inhabitants, and other 
settlers of the Kaskasias, St. Vincents, and the neighboring villages, 
who have heretofore professed themselves citizens of Virginia, their 
laws and customs now in force among them relative to the descent 
and conveyance of property. 

Be it ordained by the authority aforesaid, That there shall be ap¬ 
pointed from time to time, by congress, a governor, whose commission 
shall continue in force for the term of three years, unless sooner re¬ 
voked by congress. He shall reside in the district and have* a free¬ 
hold estate therein in one thousand acres of land, while in the exer¬ 
cise of his office. 

There shall be appointed from time to time, by congress, a secre¬ 
tary, whose commission shall continue in force for four years, unless 
sooner revoked. He shall reside in the district, and have a freehold 
estate therein in five hundred acres of land, while in the exercise of 
his office. It shall be his duty to keep and preserve the acts and laws 
passed by the legislature, and the public records of the district, and 
the proceedings of the governor in his executive department, and 
transmit authentic copies of such acts and proceedings, every six 
months, to the secretary of congress. 

There shall also be appointed a court, to consist of three judges, 
any two of whom to form a court, who shall have a common-law juris¬ 
diction, and reside in the district, and shall have each therein a free¬ 
hold estate in five hundred acres of land, while in the exercise of their 
offices; and their commission shall continue in force during good 
behavior. 


40 


Ordinance of 1787 


The governor and judges, or a majority of them, shall adopt and 
publish in the district such laws of the original states, criminal and 
civil, as may be necessary and best suited to the circumstances of the 
district, and report them to congress from time to time; which laws 
$iall be in force in the district until the organization of the general 
assembly therein, unless disapproved of by congress; but afterwards 
the legislature shall have authority to alter them as they shall think 
fit. 

The governor for the time being shall be commander-in-chief of the 
militia, appoint and commission all officers in the same below the rank 
of general officers. All general officers shall be appointed and com¬ 
missioned by congress. 

Previous to the organization of the general assembly, the governor 
shall appoint such magistrates and other civil officers, in each county 
or township, as he shall find necessary for the preservation of the 
peace and good order of the same. 

After the general assembly shall be organized, the powers and 
duties of the magistrates and other civil officers shall be regulated and 
defined by the said assembly, but all magistrates and other civil offi¬ 
cers, not herein otherwise directed, shall, during the continuance of 
this temporary government, be appointed by the governor. 

For the prevention of crimes and injuries, the laws to be adopted 
or made shall have force in all parts of the district, and for the execu¬ 
tion of process, criminal and civil, the governor shall make proper 
divisions thereof; and he shall proceed from time to time, as circum¬ 
stances may require, to lay out the parts of the district in which the 
Indian titles shall have been extinguished into counties and town¬ 
ships, subject, however, to such alterations as may thereafter be 
made by the legislature. 

So soon as there shall be five thousand free male inhabitants, of 
full age, in the district, upon giving proof thereof to the governor, 
they shall receive authority, with time and place, to elect representa¬ 
tives from their counties or townships to represent them in the gen¬ 
eral assembly; Provided, that for every five hundred free male in¬ 
habitants there shall be one representative, and so on, progressively 
with the number of free male inhabitants, shall the right of repre¬ 
sentation increase until the number of representatives shall amount 
to twenty-five; after which, the number and proportion of representa¬ 
tives shall be regulated by the legislature; Provided, that no person 
be eligible or qualified to act as a representative unless he shall 
have been a citizen of one of the United States three years, and be a 
resident in the district, or unless he shall have resided in the district 
three years, and, in either case, shall likewise hold in his own right, 
in fee simple, two hundred acres of land within the same; Provided, 
also, that a freehold in fifty acres of land in the district, having been 
a citizen of one of the states, and being resident in the district, or 
the like freehold and two years’ residence in the district, shall be 
necessary to qualify a man as an elector of a representative. 

The representatives thus elected shall serve for the term of two 
years; and in case of the death of a representative or removal from 


41 


Ordinance of 1787 

office, the governor shall issue a writ to the county or township for 
which he was a member, to elect another in his stead, to serve for 
the residue of the term. 

The general assembly, or legislature, shall consist of the governor, 
legislative council, and a house of representatives. The legislative 
council shall consist of five members, to continue in office five years, 
unless sooner removed by congress, any three of whom to be a quorum; 
and the members of the council shall be nominated and appointed in 
the following manner, to wit: As soon as representatives shall be 
elected, the governor shall appoint a time and place for them to meet 
together, and when met they shall nominate ten persons, residents in 
the district, and each possessed of a freehold in five hundred acres of 
land, and return their names to congress, five whom congress shall 
appoint and commission to serve as aforesaid; and whenever a vacancy 
shall happen in the council, by death or removal from office, the 
house of representatives shall nominate two persons, qualified as 
aforesaid, for each vacancy, and return their names to congress, one 
of which congress shall appoint and commission for the residue of the 
term; and every five years, four months at least before the expira¬ 
tion of the time of service of the members of the council, the said 
house shall nominate ten persons, qualified as aforesaid, and return 
their names to congress, five of whom congress shall appoint and 
commission to serve as members of the council five years, unless 
sooner removed. 

And the governor, legislative council and house of representatives 
shall have authority to make laws, in all cases, for the good govern¬ 
ment of the district, not repugnant to the principles and articles in 
this ordinance established and declared. 

And all bills passed by a majority in the house, and by a majority 
in the council shall be referred to the governor for his assent, but no 
bill or legislative act whatever shall be of any force without his assent. 

The governor shall have power to convene, prorogue, and dissolve 
the general assembly when, in his opinion, it shall be expedient. 

The governor, judges, legislative council, secretary, and such other 
officers as congress shall appoint in the district, shall take an oath or 
affirmation of fidelity and of office, the governor before the president 
of congress, and all other officers before the governor. 

As soon as a legislature shall be formed in the district, the coun¬ 
cil and house, assembled in one room, shall have authority, by joint 
ballot, to elect a delegate to congress, who shall have a seat in con¬ 
gress, with the right of debating, but not of voting during this tem¬ 
porary government. 

And for extending the fundamental principles of civil and religious 
liberty, which form the basis whereon these republics, their laws and 
constitutions are erected; to fix and establish those principles as the 
basis of all laws, constitutions and governments which forever here¬ 
after shall be formed in the said territory; to provide, also, for the 
establishment of states, and permanent government therein, and for 
their admission to a share in the Federal councils on an equal foot¬ 
ing with the original states, at as early a period as may be consistent 
with the general interest— 


42 


Ordinance of 1787 


It is hereby ordained and declared by the authority aforesaid, That 
the following articles shall be considered as articles of compact be¬ 
tween the original states and the people and states in the said terri¬ 
tory, and forever remain unalterable, unless by common consent, to 
wit: 

Article 1. No person demeaning himself in a peaceable, orderly 
manner shall ever be molested on account of his mode of worship or 
religious sentiments, in the said territory. 

Art. 2. The inhabitants of said territory shall always be entitled 
to the benefits of the writ of habeas corpus, and of the trial by jury; 
of a proportionate representation of the people in the legislature; and 
of judicial proceedings according to the course of the common law. 
All persns shall be bailable, unless for capital offenses where the 
proof shall be evident or the presumption great. 

All fines shall be moderate; no cruel or unusual punishment shall 
be inflicted. 

No man shall be deprived of his liberty or property, but by judg¬ 
ment of his peers, or the law of the land; and, should the public exi¬ 
gencies make it necessary, for the common preservation, to take any 
person’s property, or to demand his particular services, full com¬ 
pensation shall be made for the same. And, in the just preservation 
of rights and property, it is understood and declared, that no law 
ought ever to be made, or to have force in the said territory, that 
shall, in any manner whatever, interfere with, or affect, private con¬ 
tracts, or engagements, bona fide and without fraud, previously formed. 

Art. 3. Religion, morality and knowledge, being necessary to good 
government and the happiness of mankind, schools and the means of 
education shall forever be encouraged. The utmost good faith shall 
always be observed towards the Indians; their lands and property 
shall never be taken from them without their consent; and in their 
property, rights and liberty, they never shall be invaded, or disturbed, 
unless in just and lawful wars, authorized by congress; but laws, 
founded in justice and humanity, shall, from time to time, be made, 
for preventing wrongs being done to them, and for preserving peace 
and friendship with them. 

Art. 4. The said territory, and the state which may be formed 
therein, shall forever remain a part of this confederacy of the United 
States of America, subject to the Articles of Confederation, and to 
such alterations therein as shall be constitutionally made, and to all 
the acts and ordinances of the United States in congress assembled 
conformable thereto. 

The inhabitants and settlers in the said territory shall be subject 
to pay a part of the federal debts, contracted, or to be contracted, and 
a proportional part of the expenses of government, to be apportioned 
on them by congress according to the same common rule and measure 
by which apportionment thereof shall be made on other states; and 
the taxes for paying their proportion shall be laid and levied by the 
authority and direction of the legislatures of the district, or districts, 
or new states, as in the original states, within the time agreed upon 
by the United States in congress assembled. The legislatures of those 
districts, or new states, shall never interfere with the primary dis¬ 
posal of the soil by the United States in congress assembled, nor with 


Ordinance of 1787 


43 


any regulations congress may find necessary for securing the title in 
such soil to bona fide purchasers. No tax shall be imposed on lands, 
the property of the United States, and in no case shall non-resident 
proprietors be taxed higher than residents. The navigable waters 
leading into the Mississippi and St. Lawrenoe, and the carrying places 
between the same, shall be common highways, and forever free, as 
well to the inhabitants of the said territory as to the citizens of the 
United States, and those of any other states that may be admitted into 
the confederacy, without any tax imposed, or duty therefor. 

Art. 5. There shall be formed in the said territory not less than 
three nor more than five states, and the boundaries of the states, as 
soon as Virginia shall alter her act of cession, and consent to the 
same, shall become fixed and established as follows, to wit: 

The Western state in the said territory shall be bounded by the 
Mississippi, the Ohio and Wabash rivers, a direct line drawn from 
the Wabash and Port Vincents due north to the territorial line be¬ 
tween the United States and Canada, and by said territorial line to the 
Lake of the Woods and Mississippi. 

The Middle state shall be bounded by the said direct line, the 
Wabash, from Port Vincents to the Ohio, by a direct line drawn due 
north from the mouth of the Great Miami to the said territorial line. 

The Eastern state shall be bounded by the last-mentioned direct 
line, the Ohio, Pennsylvania, and the said territorial line. 

Provided however, and it is further understood and declared, that 
the boundaries of these three states shall be subject so far to be altered 
that, if congress shall hereafter find it expedient, they shall have au¬ 
thority to form one or two states in that part of the said territory 
which lies north of an east and west line drawn through the southerly 
bend or extreme of Lake Michigan, and when any of the said states 
shall have sixty thousand free inhabitants therein, such state shall 
be admitted, by its delegates, into the congress of the United States, 
on an equal footing with the original states, in all respects what¬ 
ever and shall be at liberty to form a permanent constitution and 
state government; Provided, the constitution and government so to 
be formed shall be republican, and in conformity to the principles 
contained in these articles; and so far as it can be consistent with the 
general interest of the confederacy, such admission shall be allowed 
at an earlier period, and when there may be a less number of free in¬ 
habitants in the state than sixty thousand. 

Art. 6. There shall be neither slavery nor involuntary servitude 
in the said territory, otherwise than in the punishment of crimes 
whereof the party shall have been duly convicted; Provided always, 
that any person escaping into the same, from whom labor or service 
is lawfully claimed in any one of the original states, such fugitive may 
be lawfully reclaimed and conveyed to the person claiming his or her 
labor, or service, as aforesaid. 

Be it ordained by the authority aforesaid, that the resolutions of 
the twenty-third of April, seventeen hundred and eighty-four, relative 
to the subject of this ordinance, be and the same are hereby repealed 
and declared null and void. 

Adopted July 13, 1787. 


44 Ordinance of 1787 

In the brief of counsel in the Insular Case it is said: 


The great ordinance for the government of the Northwest Terri¬ 
tory, drawn originally by Jefferson, 1 and somewhat modified before it 
passed through Congress, was in some respects a prototype of the 
Constitution itself. It embodied the ideas which led up to the founda¬ 
tion of the Constitution, based upon the political philosophy adhered 
to by most of the framers of the Constitution. It gave to the hardy 
and self-reliant pioneers in that Territory political rights of self- 
government and secured to them the guarantees of personal freedom 
in accordance with the most enlightened rules of the common law. 
That this ordinance was regarded as sacred and as unchangeable as 
the law of the Medes and Persians, appears from its language, which 
declares it to be a compact between the people of the Territories and 
the people of the States, unchangeable except by consent. Almost the 
first act of the first Congress, in which many of the framers of the 
Constitution sat, was to re-enact the Northwest ordinance in its en¬ 
tirety. 182 U. S. Rep. 1/7. 


Chief Justice White in a concurring opinion in the Insular 
Cases, said: 

The opinion has been expressed that the ordinance of 1787 became 
inoperative and a nullity on the adoption of the Constitution (Taney, 
C. J., in Scott v. Sandford, 19 How. 393, 438,) while, on the other 
hand, it has been said that the ordinance of 1787 was “the most 
solemn of all engagements,” and became a part of the Constitution 
of the United States by reason of the sixth article, which provided 
that “all debts contracted and engagements entered into, before the 
adoption of this Constitution, shall be as valid against the United 
States under this Constitution as under the confederation.” Per Bald¬ 
win, J., concurring opinion in Lessee of Pollard’s Heirs v. Kibbe, 
14 Pet. 353, 417, and per Catron, J., in dissenting opinion in Strader 
v. Graham, 10 How. 82, 98. Whatever view may be taken of this 
difference of legal opinions, my mind refuses to assent to the conclu¬ 
sion that under the Constitution the provision of the Northwest 
Territory ordinance making such territory forever a part of the con¬ 
federation was not binding on the government of the United States 
when the Constitution was formed. When it is borne in mind that 
large tracts of this territory were reserved for distribution among 
the continental soldiers, it is impossible for me to believe that it was 
ever considered that the result of the cession was to take the North¬ 
west Territory out of the Union, the necessary effect of which would 
have been to expatriate the very men who by their suffering and valor 
had secured the liberty of their united country. Can it be conceived 
that North Carolina, after the adoption of the Constitution, would cede 
to the general government the territory south of the Ohio River, in- 


1 There have been two varying con¬ 
tentions as to who was the author and 
draftsman of this ordinance. One 
contention was that Mr. Dane, of Mas¬ 
sachusetts, was its author as well as 
its draftsman. He probably did make 
the final draft of it and may have been 


the author of some of its details ; but 
no one can read it in connection with 
Jefferson’s writings on government and 
fail to conclude that the ideas and 
words used to express them in the 
main are those of Jefferson. 


Ordinance of 1787 


45 


tending thereby to expatriate those dauntless mountaineers of North 
Carolina who had shed lustre upon the Revolutionary arms by the 
victory of King’s Mountain? And the rights bestowed by Congress 
after the adoption of the Constitution, as I shall proceed to demon¬ 
strate, were utterly incompatible with such a theory. 

Beyond question, in one of the early laws enacted at the first ses¬ 
sion of the First Congress, the binding force of the ordinance was 
recognized, and certain of its provisions concerning the appointment of 
officers in the territory were amended to conform the ordinance to the 
new Constitution, c. 8, August 7, 1789, 1, Stat. 50. 182 TJ. S. Rep., pp. 
820-321. 

This 1 is the name given to the great stretch of territory ceded to 
the United States by Great Britain at the close of the revolutionary 
war. Out of it were afterwards formed the five states of Ohio, In¬ 
diana, Illinois, Wisconsin, and Michigan. In 1787, before the adop¬ 
tion of the constitution of the United States, the Congress of the con¬ 
federation framed an “Ordinance for the Government of the Northwest 
Territory,” which is chiefly interesting to the student of constitutional 
law on account of the liberal provisions which it made for the se¬ 
curity of civil, religious, and political liberty, and for the fact that 
it prohibited slavery and involuntary servitude, except as a punish¬ 
ment for crime, within the territory. This ordinance was not abro¬ 
gated by the adoption of the federal constitution, but remained in 
force as the municipal law of the territory in so far as it was not 
inconsistent with the constitution. Spooner v. McConnell, 1 McLean, 
Fed. Cas. Co. 13, 245. Black, on Constitutional Laws, 232. 

The claim of the state of Virginia to dominion over that region of 
country called the Territory of the Northwest of the Ohio river, 
which is now filled with a population of many millions and divided 
into five states of the Union, was not undisputed in the days when that 
state was a province of Great Britain. The French had numerous 
settlements there; and the government of Great Britain claimed, both 
by the acquisition of Canada and by settlement, a large part of that 
loosely -defined country. They had their military posts there, as well 
as peaceful villages. The Indians also denied all right of the Colony 
of Virginia to rule over them; and some of the most warlike tribes 
of that race were known to occupy, with claim of exclusive right, the 
largest part of the country. 91 U. S., W. 

1(< The Northwest Territory.” 


GOVERNMENT DEFINED 


Mr. Justice Miller thus defines government: 

A pure monarchy means a despotism, a government where the 
supreme power is lodged in the hands of one man, a monarch, an 
autocrat, or whatever else he may be called, who, in his own discre¬ 
tion, discharges all the functions of the executive, legislative, and 
judicial departments of the government. He decides controversies be¬ 
tween private individuals, makes the laws by which their determina¬ 
tion is to be controlled, and executes his own decrees. 

A pure democracy is one in which every transaction of common 
interest and private justice is brought before the entire body of the 
people, and they determine what shall be done in the premises; the 
government “of the people, by the people, for the people.” They make 
and administer the law, they hear and decide cases, and they execute 
their judgments. 

A pure aristocracy is a form of government in which these powers 
are held and exercised by a few favored individuals, a limited number 
of prominent men who have become such by their greater wealth or 
power, or by inheritance. 

I am not aware that there exists at this day in any civilized coun¬ 
try a pure example of either of these forms of government. The 
Chinese monarchy is a close approximation to a pure type, Russia is 
known as an “absolute monarchy,” and the history of Athens and 
Rome shows the former existence there as a near approach to a pure 
democracy. Perhaps the purest example of an aristocracy was the 
Venetian Government, which was successfully carried on for a long 
time, and attained great power. In a modified form an aristocracy 
may be said to govern today in England, but it is united with a 
monarchy. Indeed, all modern governments in civilized countries are 
combinations and modifications of these three forms. 

The United States is a wonderful illustration of their harmonious 
combination, preserving for the benefit of the people most of the ad¬ 
vantages and the best points inherent in each system. We have an 
executive who is not hereditary, but elective; a legislative body 
elected by the people; and a judicial body separated from and which 
may be said to be independent of the other two. Miller's Const., pp. 
61-62. 


Difficulties of Forming Governments 

If mankind were to resolve to agree in no institution of govern¬ 
ment, until every part of it had been adjusted to the most exact 
standard of perfection, society would soon become a general scene 
of anarchy, and the world a desert. Where is the standard of per¬ 
fection to be found? Who will undertake to unite the discordant 
opinions of a whole community in the same judgment of it; and to 
prevail upon one conceited projector to renounce his INFALLIBLE 
criterion for the FALLIBLE criterion of his more CONCEITED 
NEIGHBOR? To answer the purpose of the adversaries of the Con- 


46 


Governments , Kinds of 


47 


stitution, they ought to prove, not merely that particular provisions 
in it are not the best which might have been imagined, but that the 
plan upon the whole is bad and pernicious. Hamilton in The Fed¬ 
eralist, Vol. II, Number LXV. 

Kinds of Governments 

Bouviere thns defines and describes the kinds of govern¬ 
ments : 

Government is the manner in which sovereignty is exercised in the 
State. It is the means adopted to put the fundamental law of the 
State in action. It is the function and the very end of the govern¬ 
ment to apply this fundamental law for the happiness and advantage 
of all the citizens; for the constitution of the State is the lawful ex¬ 
pression of the wants and of the will of all. Hence follows this neces¬ 
sary consequence, that the government is the delegate of society, the 
State, or the nation. The people, being sovereign, may adopt any of 
the forms of government which have been devised among them. 

There have been at all times, and there are now, different forms of 
government, the three principal ones are democracy, aristocracy, and 
monarchy. But these different forms are combined and subdivided 
to infinity. From the African prince, who disposes freely of the lives 
and properties of his subjects, to the European monarch, whose power 
is contained within much narrower bounds; from the savage cazic, 
who governs his tribe because he is the oldest man in it, to the re¬ 
publican magistrate who is elected by the free suffrage of his fellow 
citizens, we perceive an infinity of organic combinations. 

When the sovereign power is exercised by the people in a body, or 
by a majority of the people, the government is called a democracy. 
In this form of government all men are equal in a political and civil 
point of view. Democracy is the complete triumph of the principle 
of equality. All the citizens must have an equality of rights and not 
merely of privileges. 

When the sovereign power is exercised by a small number of per¬ 
sons, in their own right, exclusively from the rest of the people, this 
form of government is called an aristocracy. In an aristocratic coun¬ 
try the rulers claim the power to govern in their own right, and not 
by delegation, as in a representative democracy. Aristocracy and 
slavery spring from the same root. The first is the parent of the 
second, for the master and slave appeared on the same day. 

When the sovereign power is concentrated in the hands of a single 
magistrate, the government is a monarchy, whether it bear the name 
of an empire, a kingdom, a dutchy, or any other. 

But the sovereign power may be divided and combined in a thou¬ 
sand different ways; hence, result mixed governments, such as are 
most of those of civilized nations. Indeed, it may with truth be ob¬ 
served that the constitution of each State, consisting in the manner 
in which the powers of sovereignty are divided, seldom remains the 
same for any great length of time. Its form varies more frequently 
than it would strike one at first blush, in consequence of the encroach- 


48 


Governments, Kinds of 


ments which are insensibly made by one branch of the government 
over the others. There are, besides these principal forms, a variety 
of governments, which will here be defined. 

Theocracy is a government where the clergy exercise the sovereign 
power, under a pretence that it is the government of God, and under 
his immediate direction. 

Ochlogracy is a government where the authority is in the hands of 
the multitude; it is the abuse of a democracy. 

Oligarchy is a government where the sovereign authority has been 
usurped by a few men, when such power ought to reside in the people. 

Demagogy is the exaggeration and abuse of democracy, and is a 
violation of the principle of the sovereignty of the people. 

Polyarchy is that form of government in which the authority is 
confided to several persons; as, for example, the Directory and Con¬ 
sulate, and the late Provisionary government of France. Another ex¬ 
ample may be given where two brothers, the sons of a king, succeed to 
the throne and rule jointly. 

A representative democracy is a government where the powers of 
sovereignty are delegated to a body of men, elected from time to time, 
who exercise them for the benefit of the whole nation. Such is the 
general government of the United States, and of the several States of 
the American Union. 

Despotism is the state where the powers of the government are not 
divided, but united in the hands of a single man, whatever may be 
the title he bears, emperor, king, sultan, president, etc.; where the 
power of such man is not limited by law, he may, having only his 
will for a rule make or repeal laws, execute them or not, at his pleas¬ 
ure, etc. This is not properly a form of government but an abuse of 
government. Despotism is an act of tyranny. 

By tyranny is understood the violation of the laws which regulate 
the exercise of the powers of sovereignty, and tyrant the chief of the 
State, who, although he may be legitimate, violates them for the pur¬ 
pose of committing arbitrary acts contrary to justice. 

The terms tyrant and usurper are often confounded because usurp¬ 
ers are almost always tyrants. But these terms are very different. 
Even a legitimate king may become a tyrant, if he governs in an un¬ 
just and despotic manner; and a usurper may cease to be a tyrant 
by governing according to justice. 

A commonwealth is that form of government in which the adminis¬ 
tration of public affairs is open or common to all persons, without any 
special regard to rank of property, as distinguished from monarchy or 
aristocracy. 

A republic, which is another name for commonwealth, is that form 
of government in which the administration of affairs is open to all 
the citizens. In another sense the term republic, res publica, signi¬ 
fies the state independently of its form of government. 

An hierarchy signified originally power of the priests for, in the 
beginning of societies, the priests were entrusted with all the power; 
but among the priests themselves were different degrees of power and 
authority, at the summit of which was the sovereign pontiff, and this 
was called the hierarchy. Now it signifies not so much power of the 
priest, as order of power. 


Government, Constitutional Requisites of 


49 


Stratocracy is a military government. This word is derived from 
two Greek words signifying army and power. Bouvier's Institutes, 
Vol. I, pp. 10, 11, 12 and 13. 

The constitution of Russia establishes the supreme and arbitrary 
power of the Czar and determines the order of succession to the throne. 
That of the German Empire prescribes the rule that the King of 
Prussia shall be Emperor of Germany, regulates the representation of 
the component kingdoms and states in the federal legislature. That 
of the United States establishes a republican form of government and 
apportions the powers of sovereignty between the Union and the 
States. But since the formation of the constitution of the United 
States, and the spread of liberal ideas throughout the civilized world, 
attendant upon the far-reaching influences of the French Revolution, 
an era of written constitutions has prevailed. Black on Constitutional 
Laws, 2. 

If a king has granted a constitution, its prime object has been to 
admit the people to a share in the government and to secure their 
liberties against the exercise of despotic authority. If the people of a 
state have adopted a democratic constitution, none the less have they 
deemed it important to specify the rights and immunities which they 
considered sacred and fundamental, and to make sure provision against 
their invasion by the men of power. Consequently, when we now 
speak of “constitutional government” or a “constitutional monarchy,” 
it is this latter idea—the security of popular rights and liberties— 
which is principally dwelt upon. Black on Constitutional Laws, 3. 

It is the nature of a republican government, that either the col¬ 
lective body of the people or particular families should be possessed 
of the supreme power; of a monarchy, that the prince should have this 
power, but, in the execution of it, should be directed by established 
laws: of a despotic government, that a single person should rule ac¬ 
cording to his own will and caprice. Montesquieu’s Works, Book III, 
Chapter II. 

There are three species of government; republican, monarchial, and 
despotic. In order to discover their nature, it is sufficient to recollect 
the common notion, which supposes three definitions, or rather three 
facts: “That a republican government is that in which the body or 
only a part of the people is possessed of the supreme power: monarchy, 
that in which a single person directs every thing by his own will and 
caprice.” Montesquieu's Works, Book I, Chapter III. 

Constitutional Requisites of Government 

To the mind of that profound jurist and accomplished statesman, 
Elihu Root, there are five fundamental characteristics of the American 
system of constitutional government, the unimpaired maintenance of 
which is essential to the preservation of our liberty and the pro¬ 
gressive realization of our democratic ideals. Conservative but not 
reactionary, recognizing frankly the changing conditions of modern 
life, welcoming to the council table the noble zeal of the idealist and 
the reformer, he yet reminds us that “religion, the philosophy of 
morals, the teaching of history, the experience of every human life, 


50 


Government, Origin of and Necessity of 


point to the same conclusion—that in the practical conduct of life 
the most difficult and the most necessary virtue is self-restraint. It 
is the first lesson of childhood; it is the quality for which great mon- 
archs are most highly praised; the man who has it not is feared and 
shunned; it is needed most where power is greatest; it is needed more 
by men acting in a mass than by individuals, because men in the mass 
are more irresponsible and difficult of control than individuals.” In 
this same admirable spirit of self-restraint, with calm, wise, and 
weighty words, free alike from noisy declamation and hot denuncia¬ 
tion, Mr. Root approaches the task of stating the essentials of true 
constitutional government, and vindicating the existing American 
system as against counsels of destruction and the spirit of short¬ 
sighted experimentation. These are the five basic principles upon 
which he insists: 

1. The representative system of government. 

2. Protection of individual liberty by specific constitutional limi¬ 
tations. 

3. The distribution of governmental powers and the imposition of 
such limitations upon each will prevent the setting up of despotism. 

4. The preservation, in the just balance of their powers and func¬ 
tions, of both the national and state governments. 

5. The provision that the observance of constitutional limitations 
shall be essential to the validity of laws, this to be judged by the 
courts in each concrete case as it arises. The Constitutional Review , 
Vol. I, 40. 

Origin of Government 

In 1815 Mr. Adams wrote Mr. Jefferson as follows: 

The question before the human race is, whether the God of Nature 
shall govern the world by His own laws, or whether priests and kings 
shall rule it by fictitious miracles? Or, in other words, whether au¬ 
thority is originally in the people, or whether it has descended for 
1800 years in a succession of popes and bishops, or brought down from 
heaven by the Holy Ghost in the form of a dove, in a phial of holy 
oil? Vf Jefferson's Writings, (Mem. ed.), p. 320. 

Necessity of Government 

The necessity of government is indispensable if freedom and 
liberty are to be secure. To this end the people must cede to 
the government some of their natural rights in order to vest 
it with requisite powers. One of the serious questions which 
presented itself to the American colonists was whether or not 
it was best to have all of North America to constitute one 
nation or to have many nations or states and to confederate 
them. The latter thought prevailed at first and they formed 
a confederation of the thirteen colonies, which became states. 
The confederacy proved to be inefficient and a failure. Those 
who believed in a strong central government used this 


Government, History of 


51 


failure as a lever to form one strong central government, mod¬ 
elled after that of Great Britain, some going to the extent of 
desiring a monarchy, others only a strong republican one in 
form, while others still clung to the idea of preserving the 
identity and sovereignty of each state under a better and 
stronger compact of confederation. The result was a mean 
between the two extremes, the formation of a compact and 
dual government, and dividing the powers between the Federal 
and the State sovereign. The advantages of the union of all 
our States and people over a division into too many govern¬ 
ments as to our relations with foreign nations is well and suc¬ 
cessfully set forth by Mr. John Jay, our first Chief Justice in 
the first five numbers of the Federalist. 

History of Government 

Mr. Jefferson makes the following suggestions to a friend 
and inquirer, as to the best works on Constitutional Govern¬ 
ment, and the history of ours, to which the following is a part 
of his reply: 

I think there does not exist a good elementary work on the or¬ 
ganization of society into civil government: I mean a work which 
presents in one full and comprehensive view the system of principles 
on which such an organization should be founded, according to the 
rights of nature. For want of a single work of that character, I should 
recommend Locke on Government, Sidney, Priestley’s Essay on the 
First Principles of Government, Chipman’s Principles of Government, 
and the Federalist. Adding, perhaps, Beccaria on crimes and punish¬ 
ments, because of the demonstrative manner in which he has treated 
that branch of the subject. If your view's of political inquiry go fur¬ 
ther, to the subject of money and commerce, Smith’s Wealth of Na¬ 
tions is the best book to be read, unless Say’s Political Economy can 
be had, which treats the same subjects on the same principles, but in 
a shorter compass and more lucid manner. But I believe this work 
has not been translated into our Language. 

History in general only informs us what bad government is. 
But as we have employed some of the best materials of the British 
constitution in the construction of our own government, a knowledge 
of British history becomes useful to the American politician. There 
is, however, no general history of that country which can be recom¬ 
mended. The elegant one of Hume seems intended to disguise and 
discredit the good principles of the government, and is so plausible 
and pleasing in its style and manner, as to instill its errors and 
heresies insensibly into the minds of unwary readers. Baxter has 
performed a good operation on it. He has taken the text of Hume as 
his ground work, abridging it by the omission of some details of lit¬ 
tle interest, and wherever he has found him endeavoring to mislead, 
by either the suppression of a truth or by giving it a false coloring, 


52 


Government, Object and Purpose 


he has changed the text to what it should be, so that he may properly 
call it Hume’s history republicanized. 11 Jefferson's Writings, (Mem. 
edj, pp. 222, 223, and 224. 

He also adds that Baxter’s work was not popular in England, 
because it was Republican, and that in consequence thereof, 
only a few copies ever reached America. 

Object and Purpose of Government 

Mr. Madison thus states the objects of government: 

Persons and property are the two great subjects on which Govern¬ 
ments are to act; and the rights of persons, and the rights of property, 
are the objects, for the protection of which Government was instituted. 
These rights cannot well be separated. The personal right to acquire 
property, which is a natural right, gives to property, when acquired, 
a right to protection, as a social right. The essence of Government is 
power; and power, lodged as it must be in human hands, will ever be 
liable to abuse. In Monarchies, the interests and happiness of all may 
be sacrificed to the caprice and passion of a despot. In Aristocracies, 
the rights and welfare of the many may be sacrificed to the pride and 
cupidity of the few. In Republics, the great danger is, that the mar 
jority may not sufficiently respect the rights of the minority. 4 Writ¬ 
ings of Madison, pp. 51-2. 

The great object of government is to secure the greatest good to 
the greatest number. 1 1 Tucker's Const. 23. 

Mr. Calhoun says it is the Constitution and law of human 
nature, which originates governments. That without this 
Constitution and law of human nature, government could not 
exist, and with it all governments must exist. He says, first, 
by nature, man is a social creature, and that he has never been 
found in other than a social condition, and that in no other 
way could he exist; and second, that this social nature cannot 
exist -without a government. That government is necessary 
to the existence of society, and society to the existence of 
man. Society is necessary to perfect the race, and government 
is necessary to perfect society. Constitutions, Mr. Calhoun 
says, are contrivances of man; while government is of Divine 
Ordination. He says the important question is how those in¬ 
vested with the powers of government can be prevented from 
using them for self-aggrandizement instead of using them to 
protect and preserve society. 2 He adds: 

There is but one way in which this can possibly be done; and 
that is, by such an organism as will furnish the ruled with the means 
of resisting successfully this tendency on the part of the rulers to 
oppression and abuse. Power can only be resisted by power,—and 


*Mr. Tucker denied this. 


2 1 Calhoun’s Works, pp. 1 to 8. 


53 


Government, The People the Source of 

tendency by tendency. Those who exercise power and those subject 
to its exercise, the rulers and the ruled,—stand in antagonistic re¬ 
lations to each other. The same constitution of our nature which 
leads rulers to oppress the ruled,—regardless of the object for which 
government is ordained,—will, with equal strength, lead the ruled to 
resist, when possessed of the means of naming peaceable and effective 
resistance. 1 Calhoun's Works, p. 12. 

There are two kinds of government, absolute and constitu¬ 
tional, Mr. Calhoun says: 

Absolute governments, of all forms, exclude all other means of 
resistance to either authority, than that of force; and, of course, leave 
no other alternative to the governed, but to acquiesce in oppression, 
however great it may be, or to resort to force to put down the govern¬ 
ment. But the dread of such a resort must necessarily lead the gov¬ 
ernment to prepare to meet force in order to protect itself; and hence, 
of necessity, force becomes the conservative principle of all such gov¬ 
ernments. 1 Calhoun's Works, pp. 37-8. 

The People the Source of Government 

Mr. Jefferson in his Notes On Virginia, said: 

In every government on earth is some trace of human weakness, 
some germ of corruption and degeneracy, which cunning will discover 
and wickedness insensibly open, cultivate and improve. Every gov¬ 
ernment degenerates when trusted to the rulers of the people alone. 
The people themselves, therefore, are its only safe depositaries. And 
to render even them safe, their minds must be improved to a certain 
degree. (10 Jefferson’s Writings, vi.) 

The following are Jefferson’s axioms and governmental 
maxims: 

Our citizens may be deceived for a while, and have been deceived; 
but as long as the press can be protected we trust them for light. 
(Apothegm.) 

Every society has a right to fix the fundamental principles of its 
association. (To W. H. Crawford, 1816.) 

They (the people) may be led astray for a moment, but they will 
soon correct themselves. The people are the only censors of their 
governors; and even their errors will tend to keep these to the true 
principles of their institution. (To Edward Carrington, 1787.) 

My earnest wish is to see the Republican element of popular con¬ 
trol pushed to the maximum of its practicable exercise. (To Isaac 
H. Tiffany, 1816.)* 

To the same purport are the following apothegms: 1 

I know no safe depositary of the ultimate powers of society but 
the people themselves. 

*10 Jefferson’s Writings, (Mem. ed.) xi-xii. 


M 


Government, Sovereign Power of 


The will of the majority honestly expressed should give law. 

To inform the minds of the people and to follow their will is the 
chief duty of those placed at their head. 

I have such reliance on the good sense of the body of the people 
and the honesty of their leaders that I am not afraid of their letting 
things go wrong to any length in any cause. 

Sovereign Power of Government 

Mr. Webster has said, and very justly as far as these United States 
are concerned: “The sovereignty of government is an idea belonging 
to the other side of the Atlantic. No such thing is known in North 
America. Our governments are all limited. In Europe sovereignty 
is of feudal origin, and imports no more than the state of the sovereign. 
It comprises his rights, duties, prerogatives, and powers. But with 
us all power is with the people. They alone are sovereign, and they 
erect what governments they please, and confer on them such powers 
as they please. None of these governments are sovereign, in the Eu¬ 
ropean sense of the word, all being restrained by written constitutions.” 
Davis on The Rise and Fall of The Confederate Government, Vol. I, 
151-2. 

“The term ‘sovereign’ or ‘sovereignty,’ ” says Judge Story, “is 
used in different senses, which often leads to a confusion of ideas, and 
sometimes to very mischievous and unfounded conclusions.” Without 
any disrespect for Judge Story, or any disparagements of his learning 
and ability, it may safely be added that he and his disciples have con¬ 
tributed not a little to the increase of this confusion of ideas and the 
spread of these mischievous and unfounded conclusions. There is no 
good reason whatever why it should be used in different senses, or 
why there should be any confusion of ideas as to its meaning. Of all 
the terms employed in political science, it is one of the most definite 
and intelligible. The definition of it given by that accurate and lucid 
publicist, Burlamaqui, is simple and satisfactory—that “sovereignty 
is a right of commanding in the last resort in civil society.” The 
original seat of this sovereignty he also declares to be in the people. 
“But,” he adds, “when once the people have transferred their right to 
a sovereign (i. e., a monarch), they can not, without contradiction, be 
supposed to continue still masters of it.” This is in strict accord with 
the theory of American republicanism, the peculiarity of which is that 
the people never do transfer their right of sovereignty, either in 
whole or in part. They only delegate to their governments the exer¬ 
cises of such of its functions as may be necessary, subject always to 
their own control, and to reassumption whenever such government 
fails to fulfill the purposes for which it was instituted. Davis on The 
Rise and Fall of The Confederate Government, Vol. I, 141. 

That the States were severally sovereign and independent when 
they were united under the Articles of Confederation, is distinctly 
asserted in those articles, and is admitted even by the extreme parti¬ 
sans of consolidation. Of right, they are still sovereign, unless they 
have surrendered or been divested of their sovereignty; and those 


Government, Sovereign Power of 


55 


who deny the proposition have been vainly called upon to point out 
the process by which they have divested themselves, or have been 
divested of it, otherwise than by usurpation. 

Since Webster spoke and Story wrote upon the subject, however, 
the sovereignty of the States has been vehemently denied, or ex¬ 
plained away as only a partial, imperfect, mutilated sovereignty. 
Paradoxical theories of “divided sovereignty” and “delegated sover¬ 
eignty” have arisen, to create that “confusion of ideas,” and engender 
those “mischievous and unfounded conclusions,” of which Judge Story 
speaks. Confounding the sovereign authority of the people with the 
delegated powers conferred by them upon their governments, we hear 
of a Government of the United States “sovereign within its sphere,” 
and of State governments “sovereign in their sphere;” of the surrender 
by the States of part of their sovereignty to the United States, and 
the like. Now, if there be any one great principle pervading the Fed¬ 
eral Constitution, the State Constitutions, the writings of the fathers, 
the whole American system, as clearly as the sunlight pervades the 
solar system, it is that no government is sovereign—that all govern¬ 
ments derive their powers from the people, and exercise them in sub¬ 
jection to the will of the people—not a will expressed in any irregu¬ 
lar, lawless, tumultuary manner, but the will of the organized com¬ 
munity, expressed through authorized and legitimate channels. The 
founders of the American republics never conferred, nor intended to 
confer, sovereignty upon either their State or Federal Governments. 
Davis on The Rise and Fall of The Confederate Government, Vol. I, 
142. 

“But, indeed,” says Mr. Motley, “the words ‘sovereign’ and ‘sover¬ 
eignty’ are purely inapplicable to the American system. In the De¬ 
claration of Independence the provinces declare themselves ‘free and 
independent States,’ but the men of those days knew that the word 
‘sovereign’ was a term of feudal origin. When their connection with 
a time-honored feudal monarchy was abruptly served, the word ‘sover¬ 
eign’ had no meaning for us.” 

If this be true, “the men of those days” had a very extraordinary 
way of expressing their conviction that the word “had no meaning for 
us.” We have seen that, in the very front of their Articles of Con¬ 
federation, they set forth the conspicuous declaration that each State 
retained “its sovereignty, freedom, and independence.” Davis on The 
Rise and Fall of The Confederate Government, Vol. I, 143. 

Mr. Madison, one of the most distinguished of the men of that 
day and of the advocates of the Constitution, in a speech already once 
referred to, in the Virginia Convention of 1788, explained that “We, 
the people,” who were to establish the Constitution, were the people 
of “thirteen SOVEREIGNTIES.” 

In the “Federalist,” he repeatedly employs the term—as, for ex¬ 
ample, when he says: “Do they (the fundamental principles of the 
Constitution) require that, in the establishment of the Constitution, 
the States should be regarded as distinct and independent SOVER¬ 
EIGNS? They are so regarded by the Constitution proposed.” 

Alexander Hamilton—another contemporary authority, no less il¬ 
lustrious—says, in the “Federalist.” 


56 


Government, Sovereign Power of 


“It is inherent in the nature of sovereignty, not to be amenable to 
the suit of an individual without its consent. This is the general 
sense and the general practice of mankind; and the exemption, as one 
of the attributes of sovereignty, is now enjoyed by the government of 
every State in the Union.” 

In the same paragraph he uses these terms, “sovereign” and “sover¬ 
eignty,” repeatedly—always with reference to the States, respectively 
and severally. 

Benjamin Franklin advocated equality of suffrage in the Senate as 
a means of securing “the sovereignties of the individual States.” James' 
Wilson, of Pennsylvania, said sovereignty “is in the people before 
they make a Constitution, and remains in them,” described the people 
as being “thirteen independent sovereignties.” Gouverneur Morris, 
who was, as well as Wilson, one of the warmest advocates in the 
Convention of a strong central government, spoke of the Constitution 
as “a compact,” and of the parties to it as “each enjoying sovereign 
power.” Roger Sherman, of Connecticut, declared that the Govern¬ 
ment “was instituted by a number of sovereign States.” Oliver Ells¬ 
worth, of the same State, spoke of the States as “sovereign bodies.” 
These were all eminent members of the Convention which formed 
the Constitution. Davis on The Rise and Fall of The Confederate 
Government, Vol. I, lJf3-Jf~5. 

Sovereign Powers of the United States 

The powers of the United States are divided into two classes— 
those exercised beyond their borders and those exercised within their 
territorial jurisdiction; and these again are subdivided into two, 
those within the Territories and the District of Columbia and those 
within the several States. In all external relations and transactions 
with foreign nations, the sovereignty of the United States is abso¬ 
lute except in so far as it is limited by the express language and im¬ 
plied restrictions of the Constitution. Foster on the Constitution, 
Vol. 1, p. 270. 

Sovereign Power—Where Does It Reside? 

Mr. Calhoun thus argues against the proposition that sover¬ 
eignty itself can be divided: 

There is no difficulty in understanding how powers, appertaining to 
sovereignty, may be divided; and the exercise of one portion delegated 
to one set of agents, and other portion to another: or how sover¬ 
eignty may be vested in one man, or in a few, or in many. But how 
sovereignty itself—the supreme power—can be divided,—how the 
people of the several States can be partly sovereign, and partly not 
sovereign—partly supreme, and partly not supreme, it is impossible 
to conceive. Sovereignty is an entire thing; to divide, is,—to destroy 
it. 1 Calhoun's Works, p. 1J/6. 

Sovereignty is the source of law, when it was in the people, they 
delegated a part of this to the agencies of government, distributed be- 


Government, Sovereign Power of 


57 


tween the State and Federal governments; their inalienable rights they 
did not delegate to either, but reserved unto themselves, some of 
which are enumerated in our bills of right. 118 U. 8. 356-70. 

Sovereignty is the rightful political power vested in the body- 
politic. Tucker's Const. 11. 

The body-politic is the means ordained to secure the inalienable 
rights of man. It is legitimate when it promotes and does not destroy. 
Magistrates are trustees and servants of the people. God delegated 
the power that governs, but vested the right in man. No government 
worthy to exist can rightfully deprive the people of their inalienable 
rights, and essential liberties. 1 Tucker's Const. 13, 17 and notes. 

Sovereignty Defined 

The term “sovereignty” denotes the possession of sovereign power 
or supreme political authority, including paramount control of the 
constitution and frame of government and its administration. It is 
the self-sufficient source of political power, from which all specific 
political powers are derived. It describes the international independ¬ 
ence of a state, combined with the right and power of regulating its 
internal affairs without foreign dictation. Black on Constitutional 
Laws, 18. 

On the internal side, sovereignty implies the power of the state 
to make and alter its system of government, and to regulate its pri¬ 
vate affairs, as well as the rights and relations of its citizens, without 
any dictation, interference, or control on the part of any person or 
body or state outside the particular political community. Every 
statute is a manifestation of sovereignty. But where the country is 
governed under a written constitution, intended to endure against all 
change except by the solemn expression of the will of the people, the 
ultimate test of sovereignty must be found in the right and power to 
alter the constitution of government at will. Black on Constitutional 
Laws, 19. 

Sovereignty of the People 

In America, sovereignty resides in the people. But the people here 
are the qualified electors, or a majority of them, and they can exercise 
their sovereign power only in the modes pointed out by their con¬ 
stitutions. Black on Constitutional Law, 26. 

Sovereignty and Rights of the States 

The several states have not the attribute of sovereignty, except in 
a limited and qualified sense. They are local self-governing communi¬ 
ties, independent as respects each other, independent in a limited and 
qualified sense as respects the Union, but not ranking as nations or 
sovereign powers for the purposes of international law. Black on 
Constitutional Law, 22. 


58 Government, English and American Compared 

American and English Governments Compared 

The Cabinet system of government is of English origin. It 
was of. slow growth, was not known when the American gov¬ 
ernment was created, and therefore could not have been copied 
into the American Constitution. It has spread in Europe, but 
not in America. In time of war, its substitute in America is 
Presidential government, though in time of peace, we have 
here neither Cabinet, nor Presidential, but Constitutional, with 
a practical division of powers, between the two governments, 
state and federal, and then between the legislative, executive 
and judicial of each government, and each division or depart¬ 
ment acting as a check to or a balance against the others, so 
as to promote and to secure the liberties of all, the minorities 
as well as the majorities. Excerps from Mr. Bryce’s American 
Commonwealth will clearly show this. He says among many 
other things: 

The English system on which have been modeled, of course with 
many variations, the systems of France, Belgium, Holland, Italy, 
Germany, Hungary (where, however, the English scheme has been 
compounded with an ancient and very interesting native-born consti¬ 
tution), Sweden, Norway, Denmark, Spain, and Portugal, as well as 
the constitutions of the great self-governing English colonies in North 
America and Australia—this English system places at the head of 
the state a person in whose name all executive acts are done, and 
who is (except in France) irresponsible and irremovable. His acts 
are done by the advice and on the responsibility of ministers chosen 
nominally by him, but really by the representatives of the people— 
usually, but not necessarily, from among the members of the legisla¬ 
ture. The representatives are, therefore, through the agents whom 
they select, the true government of the country. When the representa¬ 
tive assembly ceases to trust these agents, the latter resign, and a 
new set are appointed. Bryce's American Commonwealth, Vol. I, 271 . 

Under this system the sovereignty of the legislature may be more 
or less complete. It is most complete in France; least complete in 
Germany and Prussia, where the power of the Emperor and King is 
great and not declining. But in all these countries not only are the 
legislature and executive in close touch with one another, but they 
settle their disputes without reference to the judiciary. The courts of 
law cannot be invoked by the executive against the legislative acts 
which do not come before it, since the legislature is either completely 
sovereign, as in England, or the judge of its own competence, as in 
Belgium. The judiciary, in other words, does not enter into the con¬ 
sideration of the political part of the machinery of government. 

The system of so-called cabinet government seems to Europeans 
now, who observe it at work over a large part of the world, an ob¬ 
vious and simple system. We are apt to forget that it was never seen 
anywhere till the English developed it by slow degrees, and that it 


59 


Government, English and American Compared 

is a very delicate system, depending on habits, traditions, and under¬ 
standings which are not easily set forth in words, much less trans¬ 
planted to a new soil. Bryce's American Commonwealth, Vol. I, 272.' 

In 1787, when the Constitutional Convention met at Philadelphia, 
the Cabinet system of government was in England still immature. It 
was so immature that its true nature had not been perceived. And 
although we now can see that the tendency was really towards the de¬ 
pression of the Crown and the exaltation of Parliament, men might 
well, when they compared the influence of George III, with that ex¬ 
ercised by George I, argue in the terms of Dunning’s famous resolu¬ 
tion, that “the power of the Crown has increased, is increasing, and 
ought to be diminished.” Bryce's American Commonwealth, Vol. I , 
273. 

Montesquieu’s treatise was taken by the thinkers of the next gen¬ 
eration as a sort of Bible of political philosophy. Hamilton and 
Madison, the two earliest exponents of the American Constitution 
they had done so much to create, cite it in the Federalist much as 
the schoolmen cite Aristotle, that is, they cite it as an authority which 
everybody will recognize to be binding; and Madison, in particular, 
constantly refers to this separation of the legislative, executive, and 
judicial powers as the distinguishing note of a free government. 
Bryce's American Commonwealth, Vol. 1, 276. 

From their colonial experience, coupled with these notions of the 
British Constitution, the men of 1787 drew three conclusions: 
Firstly, that the vesting of the executive and legislative powers in 
different hands was the normal feature of a free government. Second¬ 
ly, that the power of the executive was dangerous to liberty, and must 
be kept within well-defined boundaries. Thirdly, that in order to 
check the head of the state it was necessary not only to define his 
powers, and appoint him for a limited period, but also to destroy his 
opportunities of influencing the legislature. Conceiving that minis¬ 
ters, as named by and acting under the orders of the President, would 
be his instruments rather than faithful representatives of the people, 
they resolved to prevent them from holding this double character, 
and therefore forbade “any person holding office under the United 
States” to be a member of either House. They deemed that in this 
way they had rendered their legislature pure, independent, vigilant, 
the servant of the people, the foe of arbitrary power. Omnipotent, 
however, the framers of the Constitution did not mean to make it. 
They were sensible of the opposite dangers which might flow from a 
feeble and dependent executive. The proposal made in the first draft 
of the Constitution that Congress should elect the President, was 
abandoned, lest he should be merely its creature and unable to check 
it. To strengthen his position, and prevent intrigues among members 
of Congress for this supreme office, it was settled that the people 
should themselves, through certain electors appointed for the purpose, 
choose the President. Bryce's American Commonwealth, Vol. I, 277. 

In England, if the executive ministry displeases the House of 
Commons, the House passes an adverse vote. The ministry have their 
choice to resign or to dissolve Parliament. If they resign, a new 


60 


Government, English and American Compared 


ministry is appointed from the party which has proved itself strong¬ 
est in the House of Commons; and co-operation being restored be¬ 
tween the legislature and the executive, public business proceeds. 
If, on the other hand, the ministry dissolve Parliament, a new Par¬ 
liament is sent up which, if favorable to the existing cabinet, keeps 
them in office, if unfavorable, dismisses them forthwith. Accord is 
in either case restored. Bryce's American Commonwealth, Vol. I, 281. 

In America a, dispute between the President and Congress may 
arise over an executive act or over a bill. If over an executive act, an 
appointment or a treaty, one branch of Congress, the Senate, can 
check the President, that is, can prevent him from doing what he 
wishes, but cannot make him do what they wish. If over a bill which 
the President has returned to Congress unsigned, the two Houses can, 
by a two-thirds majority, pass it over his veto, and so end the quar¬ 
rel; though the carrying out of the bill in its details must be left to 
liim and his ministers, whose dislike of it may render them unwilling 
and therefore unsuitable agents. Bryce's American Commonwealth, 
Vol. I, 282. 

There oxists between England and the United States a difference 
which is full of interest. In England the legislative branch has be¬ 
come supreme, and it is considered by Englishmen a merit in their 
system that the practical executive of the country is directly re¬ 
sponsible to the House of Commons. In the United States, however, 
not only in the national government, but in every one of the States, 
the exactly opposite theory is proceeded upon—that the executive 
should be wholly independent of the legislative branch. Americans 
understand that this scheme involves a loss of power and efficiency, 
but they believe that it makes greatly for safety in a popular govern¬ 
ment. They expect the executive and the legislature to work together 
as well as they can, and public opinion does usually compel a degree 
of co-operation and efficiency which perhaps could not be expected 
theoretically. It is an interesting commentary on the tendencies of 
democratic government, that in America reliance is coming to be 
placed more and more, in the nation, in the State, and in the city, 
upon the veto of the Executive as a protection to the community 
against legislative branch. Weak Executives frequently do harm, but 
a strong Executive has rarely abused popular confidence. On the 
other hand, instances where the Executive, by the use of his veto 
power, has arrested mischiefs due to the action of the legislature are 
by no means rare. This circumstance leads some Americans to be¬ 
lieve that the day is not far distant when in England some sort of 
weto power, or other constitutional safe-guard must be interposed to 
protect the people against their Parliament. Bryce's American Com¬ 
monwealth, Vol. I, 283. 

It is another and a remarkable consequence of the absence of cabi¬ 
net government in America, that there is also no party government in 
the European sense. Party government in France, Italy, and England 
means, that one set of men, united, or professing to be united, by 
holding one set of opinions, have obtained control of the whole ma¬ 
chinery of government, and are working it in conformity with those 
opinions. Their majority in the country is represented by a majority 


Government , English and American Compared 61 

in the legislature, and to this majority the ministry of necessity be¬ 
longs. The ministry is the supreme committee of the party, and 
controls all the foreign as well as domestic affairs of the nation, be¬ 
cause the majority is deemed to be the nation. It is otherwise in 
America. Men do, no doubt, talk of one party as being “in power,” 
meaning thereby the party to which the President belongs. But they 
do so because that party enjoys the spoils of office, in which to so 
many politicians the value of power consists. They do so also because 
in the early days the party prevailing in the legislative usually pre¬ 
vailed also in the executive department, and because the presidential 
election was, and still is, the main struggle which proclaimed the 
predominance of one or other party. Bryce's American Commonwealth, 
Vol. I, 285. 

There is in the American government, considered as a whole, a 
want of unity. Its branches are unconnected; their efforts are not 
directed to one arm, do not produce one harmonious result. Bryce's 
American Commonwealth, Vol. I, 287. 

A President can do little, for he does not lead either Congress or 
the nation. Congress cannot guide or stimulate the President, nor 
replace him by a man fitter for the emergency. The Cabinet neither 
receive a policy from Congress nor give one to it. Each power in 
the state goes its own way, or wastes precious moments in discussing 
which way it shall go, and that which comes to pass seems to be a 
result not of the action .of the legal organs of the state, but of some 
larger force which at one time uses their discord as it means, at 
another neglects them altogether. Bryce's American Commonwealth, 
Vol. I, 288. 

The English Constitution, which we admire as a masterpiece of 
delicate equipoises and complicated mechanism, would anywhere but 
in England be full of difficulties and dangers. It stands and prospers 
in virtue of the traditions that still live among English statesmen 
and the reverence that has ruled English citizens. It works by a 
body of understandings which no writer can formulate, and of habits 
which centuries have been needed to instil. So the American people 
have a practical aptitude for politics, a clearness of vision and ca¬ 
pacity for self-control never equalled by any other nation. In 1861 
they brushed aside their darling legalities, allowed the executive to 
exert novel powers, passed lightly laws whose constitutionality re¬ 
mains doubtful, raised an enormous army, and contracted a prodigious 
debt. Romans could not have been more energetic in their sense of 
civic duty, nor more trustful to their magistrates. When the emer¬ 
gency had passed away the torrent which had overspread the plain 
fell back at once into its safe and well-worn channel. The reign of 
legality returned; and only four years after the power of the ex¬ 
ecutive had reached its highest point in the hands of President Lin¬ 
coln, it was reduced to its lowest point in those of President John¬ 
son. Such a people can work any Constitution. The danger for them 
is that this reliance on their skill and their star may make them 
heedless of the faults of their political machinery, slow to devise im¬ 
provements which are best applied in quiet times. Bryce's American 
Commonwealth, Vol. I, 290. 


62 Government, Parliament and Congress Compared 

The power of the courts to enforce the limitations upon the pre¬ 
rogative of the crown was therefore a conception familiar to the 
minds of American lawyers long before the Revolution. The power 
of the courts to enforce limitations upon the power of a national 
legislature was not yet recognized. Blackstone had familiarized them 
with the doctrine of the omnipotence to Parliament. The maxim that 
it could do everything except to make a man a woman and a woman 
a man 1 was as trite a quotation then as now. Yet successive steps in 
human progress had not only shown the necessity but suggested the 
practicability of such a practice. Under the Tudors and Stuarts the 
doctrine of the divine right of kings was not only preached from the 
pulpit but argued at the bar. The crown lawyers contended that Par¬ 
liament could not, even with the consent of the king, shear the crown 
of its essential prerogatives. The king had no power to thus deprive 
his successors of their birthrights. He had not even the right to 
himself abandon a trust reposed in him by God. These claims of the 
prerogative of the crown, were among the sources of the idea of a 
prerogative of the people. 

Although no court was so bold as to set aside an act of Parliament, 
we find a few judicial sayings that an act of Parliament against com¬ 
mon right would be void. Foster on the Constitution, Yol. 1, p. 31. 

Parliament and Congress Compared 

The House of Lords is the hereditary "branch of England’s 
government, while the Senate of the United States is elective. 
Senators are elected by the respective States, each State elect¬ 
ing two. Formerly they were elected by the State legislatures 
on a joint ballot of the two houses; they may now be elected 
by direct vote of the people of the whole State. The two Sen¬ 
ators from the State, in theory represent the State in the Na¬ 
tional legislature, and not the people of the United States. 
This distinction seems to have been lost sight of, and some of 
the greatest United States Senators have refused to vote the 
expressed will of their States, voting what they claimed to be 
the will of the United States. Congressmen, members of the 
lower house, do theoretically represent the people of the 
United States and not the people of their State, or the district 
which elects them. This distinction is also in practice lost 
sight of, the Congressman more so than the Senator votes the 
wishes of those who elect him. The lords do not vote the 
wishes of anybody. They act as lock chains, or breaks, but 
not a steering wheel or motive power. Mr. Bagehot thus de¬ 
scribes the House of Lords: 

VThere now seems to be many who that is, they would so amend it as to 
are so progressive that they would abolish all distinctions between the 
have the Constitution be nearer om- sexes as to governmental offices, 
nipotent than the English Parliament, 


Government , Cabinet and Presidential 


63 


The House of Lords, being an hereditary chamber, cannot be of 
more than common ability. It may contain,—it almost always has 
contained, it almost always will contain—extraordinary men. But its 
average born law-makers cannot be extraordinary. Being a set of 
eldest sons picked out by chance and history, it cannot be very wise. 
It would be a standing miracle if such a chamber possessed a knowl¬ 
edge of its age superior to the other men of the age; if it possessed 
a superior and supplemental knowledge; if it described what they 
did not discern, and saw truly that which they saw, indeed, but saw 
untruly. Bagehot in The Federalist, Vol. II, Number IV, on The 
English Constitution. 

Not only does the House of Lords do its work imperfectly, but 
often, at least, it does it timidly. Being only a section of the nation, 
it is afraid of the nation. Having been used for years and years, 
on the greatest matters to act contrary to its own judgment, it hardly 
knows when to act on that judgment. The depressing languor with 
which it damps an earnest young Peer is at times ridiculous. Bagehot 
in The Federalist, Vol. II, Number IV, on The English Constitution. 

The danger of the House of Commons is, perhaps, that it will be 
reformed too rashly; the danger of the House of Lords certainly is, 
that it may never be reformed. Nobody asks that it should be so; 
it is quite safe against rough destruction, but it is not safe against 
inward decay. It may lose its veto as the Crown has lost its veto. 
If most of its members neglect their duties, if all its members con¬ 
tinue to be of one class, and that not quite the best; if its doors are 
shut against genius that cannot found a family, and ability which 
has not five thousand a year, its power will be less year by year, and 
at last be gone, as so much kingly power is gone—no one knows 
how. Its danger is not in assassination, but atrophy; not abolition, 
but decline. Bagehot in The Federalist, Vol. II, Number IV, on The 
English Constitution. 

Cabinet and Presidential Government 

Bagehot has written a very interesting book on this subject. 
He claims that England is a Cabinet Government, while the 
United States is a Presidential Government. He is right as 
to England, and wrong as to the United States, except in time 
of war, then he is right as to the United States. His acquaint¬ 
ance with the American government seems to have been lim¬ 
ited to the time of the war between the States, and just pre¬ 
ceding and following. He certainly describes its true char¬ 
acter, in this respect, only during war. One feature of the 
two governments he does describe well, that is as to the 
checks and balances of powers. As he says, the divisions of 
the powers of the government into the three great divisions, 
legislative, executive and judicial and the bicameral legisla¬ 
ture. It is generally stated and believed that the United 
States copied these from the English government. Bagehot 


64 Government, Cabinet and Presidential 

says, England has no such government in principle or prac¬ 
tice. He says the Americans in 1787 thought they were copy¬ 
ing the English Constitution in this respect, but they were 
contriving a contrast to it. 

He says, just as America is the type of the government 
which divides the powers among many bodies and function¬ 
aries, England is the type which consolidates all these three 
powers into the hands of the same persons and functionaries. 
That the division in England is in name and form only, to 
give dignity to the government, but in truth and in practice, 
all the ultimate powers of the government are in one body. He 
says that the unlimited power of the English government is 
in the newly elected House of Commons. That its power, 
whether legislative, executive, judicial or administrative, is 
supreme and despotic. He shows in parts of his book, that 
the absolute powder resides in the Cabinet which the House of 
Commons elect and he might add that it could further be re¬ 
duced, or consolidated, into the last elected or named prime 
minister, who is the real director, dictator and ruler of Eng¬ 
land. It is he and he only whose will must be done. He is 
to England, in war and peace, what the President of the 
United States is in time of war. The American government in 
time of war is very much like the English government, in 
that all power is then exercised by one man. In theory, it is 
not, but in practice it is. 

There is one power, however, that the President has never 
attempted to control even during war, and probably could not 
if he should, that is the judicial power. While he appoints 
the judges in time of peace and in time of war, they are ap¬ 
pointed for life, and are independent, and their functions are 
the same in war or in peace. So far as the legislative and ex¬ 
ecutive departments of the government are concerned, in prac¬ 
tice, the Constitution is one thing in war and another in peace. 
In time of war it seems impracticable to observe the Consti¬ 
tutional divisions and limitations of the Sovereign powers, 
even as between the States and the United States, or as 
between Congress and the President. Congress and the ma¬ 
jority of the people surrender all of their rights and powers 
to the President, and say his will be done. Congress, during 
war, is nothing more than a rubber stamp to counter-sign 
and pass the laws the President requests. He has no occasion 


Government, Cabinet and Presidential 


65 


then to veto bills, because none are passed, which he or his 
Cabinet did not originate or approve, and they often draft 
them and they are enacted substantially as drafted. 

Members of either house who dare oppose them are pro¬ 
claimed by the public press as being disloyal pacifists, sym¬ 
pathizing with the enemy, and sometimes called traitors. Ob¬ 
structions in time of war are not tolerated even by the peo¬ 
ple. If the country is at w r ar, the war measures must be sup¬ 
ported. Members of Congress must not then have opinions or 
wills, they must enact into law all measures which the ad¬ 
ministration requests. Of course, the President has no power 
of compelling them to enact the laws he proposes but public 
opinion sanctions the course of the President, and this opinion 
seems to be shared by most all Congressmen. This support on 
the part of Congress is not always from fear of being defeated 
for re-election or of impeachment, or of public censure by the 
press, which supports the Prseident, but the members of Con¬ 
gress seem to view the matter as do the people, that neces¬ 
sity requires it, and it knows no law. 

Of course, the President could go to such extremes that Con¬ 
gress nor the people would not support him, but he never has 
yet reached such extremes and probably never will. The 
President has no motive to go to extreme military ends fur¬ 
ther than is necessary to win the war; and to this end, Con¬ 
gress and the people will of course support him England’s 
Constitution, if such it can be called, is to center all power 
in one sovereign body, and then further, center that in one 
head, the prime minister, wdio styles his own acts and wills 
as that of the government, in war and in peace. The Ameri¬ 
can Constitution, which is in theory and in practice, a Con¬ 
stitution during peace, but not in time of war, except in 
theory, is founded upon the principle of having many sover¬ 
eign authorities and so dividing these sovereign powers as to 
give each a check upon the other and to make each balance an¬ 
other. In time of war, however, the belts are thrown off the 
wheels that move the centrifugal forces, and all power tends 
toward the center, which is the President. The American gov¬ 
ernment is planned for peace, while others are planned for 
war. The American government in time of peace is a gov¬ 
ernment of laws and not of men. Others are governments of 
men and not of laws. 

The American Constitution is founded on the principle of 
securing the liberty of the people as well as the strength of 


66 


Government, Cabinet and Presidential 


the government. The laws of the country secure the liberty 
of the people. No power but that of the people can change the 
laws so as to destroy the liberties. All men are subject to 
the law, no man is above the law. The fundamentals of the 
law, that is the Constitution, these principles which pertain 
to government and liberty, are written certain and attainable. 
Those of other countries are unwritten, uncertain and un¬ 
knowable; they are traditions, customs and histories of the 
wills, whims and wishes of men who have been by chance or 
design selected as rulers and sovereigns, and these are not 
fixed or binding upon the present rulers. They may follow 
or disregard them in part or in toto. They are therefore gov¬ 
ernments of men and not of laws. 

One advantage the English government possesses over the 
American and of any other government, is that peaceable revo¬ 
lutions are there more easily obtained than in any other gov¬ 
ernment. While there is provided in the American govern¬ 
ment means by which the form of government may be changed 
by amending the Constitution or forming a new one, it is not 
so easily or quickly done as in England. The war between 
the States was the result of the difficulty of changing the Con¬ 
stitution which left the institution of slavery to the control 
of the States. It required a revolution by force to change 
the Constitution and form of government in this respect. If 
the Constitution could have been amended in this respect 
peaceably, as provided in the Constitution, there would have 
been no secession and no war between the States. That the 
Constitution had to be amended in this respect after the war 
was to say the best of it, proof that the Southern States were 
the ones which sought to stand by the Constitution and the 
Northern States were seeking to deprive them of their Con¬ 
stitutional rights. If the Northern States had been right in 
their contentions, there would have been no need to amend 
the Constitution after the war as to slavery. Congress, and 
the Federal Government, though composed of the Northern 
States only, and in charge of all the powers of the three de¬ 
partments, found it impossible to enforce the claims of the 
Northern States, without amending the Constitution. 

Two fundamental changes in the Constitution of the United 
States are now being proposed. They each profess to change 
the form of government pro tanto. One is known as the pro¬ 
hibition amendment. It proposes to take away from the States 
their police power as to the regulations of intoxicating liquors 


Government, Cabinet and Presidential 67 

as a beverage and prohibit the people of the United States 
from manufacturing, selling or using intoxicating liquors as 
a beverage. 

The other is known as the Susan B. Anthony Amendment, 
which proposes to take away from the States the power to 
discriminate against females in the exercise of the right to 
vote. In other words, to this extent, to take away from the 
States the right and further fix the qualifications of voters in 
all elections. These are without doubt the most radical 
changes ever proposed to the Federal Constitution. Neither 
would have had a shadow of chance of adoption if proposed 
in the Constitutional Convention, or within the first century 
of our Constitution. An act passed at the first or second Con¬ 
gress of the United States, which imposed a license or tax on 
intoxicating liquors, produced a revolution in Pennsylvania 
and a threatened one in other States. These States then de¬ 
nied the right of the Federal Government to even tax intoxi¬ 
cating liquors or the transportation thereof. 

As to Avhether Federal Government should be given the 
right to fix the qualifications of voters, who were to elect 
members of the House, was much discussed in the Constitu¬ 
tional Convention. The result was that the power was ex¬ 
pressly declared to reside in the States, and it should be in 
those only whom the States authorized to vote for members of 
the lower house of the legislature of the respective States. 
Federal Constitution, Article 1, Section 2, Clause 1. Mr. 
Hamilton and Mr. Madison, one or both discusses reasons that 
led to the adoption of the above Constitutional provision in 
the fifty-second number of The Federalist. It is worthy of 
study to-day before we make the proposed change. The ques¬ 
tion as to the right of women to vote is not new in the United 
States. Women voted in Pennsylvania and New Jorsey when 
Thomas Jefferson was first elected President in 1800; but have 
not voted much there since. 

In England, practically speaking, the laws, whether con¬ 
stitutional or statutory, whether pertaining to the govern¬ 
ment or people, are made and unmade by the Cabinet. The 
Constitution and therefore the form of government can be 
changed just as quickly and just as easily as the statutory 
law can be changed. In the United States, practically speak¬ 
ing, the statutory laws, as for the Federal Government, are 
made and unmade by committees ol the two houses of Con¬ 
gress. This rule, however is not without exceptions; the bills 


68 


Government, Cabinet and Presidential 


proposed or approved by the committees do not always pass. 
The Constitutional law, however, so far as the Federal Gov¬ 
ernment is concerned, is made and unmade, only by the States 
or the people thereof. Neither a majority of the States nor of 
all the people thereof, can change the Federal Constitution. 
Such majorities cannot even propose, much less effect a 
change. It is possible that three-fourths of the people of the 
United States could not even propose an amendment to the 
Constitution. Changes therefore in the form of government 
are difficult, and hence may lead to violent revolution, but 
tend greatly to stability in the form of government. 

In England a Constitutional provision is no more secure 
or supreme than an ordinary statute or ordinance. In the 
United States a Constitutional law is secured from the touch 
of Congress. The people thereof alone can change it and then 
only in the mode provided for in the Constitution. 

In the United States, no federal law can be enacted or 
changed without the approval of both houses, the Senate and 
the lower House. Either house has a perfect veto power upon 
the other. Except as to a few subjects, revenue, taxation, 
etc., either house may originate or propose bills. In England, 
the House only proposes and enacts, the House of Lords have 
only a quasi veto that acts mostly as a break or check to 
hasty or ill considered legislation, but cannot prevent. In 
the United States, the President has an absolute veto against a 
bare majority of both houses, and a partial or quasi veto 
against both houses. That is if he vetoes a measure, it must 
go back to both houses by two-thirds majority. Consequently 
unless two-thirds of the members of both houses favor the 
measure, the President can prevent its enactment into law, 
but with this majority, Congress’ will is the statutory law on 
the subject. Just as a majority of the House of Commons is 
English law whether Constitutional or otherwise, unless the 
Cabinet orders another. 

While England, in theory, has a monarchial government 
and a hereditary one at that; in practice, the monarch pos¬ 
sesses but few governmental powers or functions. Once upon 
a time he was a real king, in theory and practice. His will 
was law, but this power has long since been taken away from 
him. One by one, his powers have left him, until now, he has 
but little, if any, influence in the control of the government, 
in war or peace. Once, it was said and believed he could do 
no wrong and was not subject to the law of England, but 


Government, Cabinet and Presidential 69 

above it. Now the King of England must, according to the 
law of England, sign his own death warrant, if the two houses 
of Parliament send it up to him. (BagehoVs English Consti¬ 
tution.) The author, however, yet contends that the king is 
a necessary and useful part of the Government, and that his 
presence, and office, makes the English Constitution better 
than those of Republics. His argument is that the King adds 
dignity, reverence and respect to the government. He is by 
the author said to be the theatrical part, though he performs 
no functions, other than social and sentimental. He has noth¬ 
ing to do with the making, executing, or administering the 
laws otherwise than as purely pro forma. A rubber stamp 
operated by a machine would serve the same purpose. 

The love of kings is purely sentimental and is fast passing 
away. The next century will know them only as part of An¬ 
cient History. Why statesmen and philosophers should take 
a pride in claiming to be ruled and governed by an idealistic 
king is difficult for .American-born people to understand. At 
one time it was said that every crowned head in Europe was 
idiotic. Mr. Bagehot says this is not wholly true, but that it 
approaches the truth. Mr. Adams and Mr. Jefferson agreed 
that of the crowned heads of their acquaintance, only one was 
above mediocre and many of them idiotic. George III. used to 
read all documents before he signed them. Lord Thurlow 
told him “it was nonsense, his looking at them, because he 
could not understand them.” 

Mr. Bagehot thus describes some recent reigns in England: 

If we look at history, we shall find that it is only during the period 
of the present reign that in England the duties of a constitutional 
sovereign have ever been well performed. The first two Georges were 
ignorant of English affairs, and wholly unable to guide them, whether 
well or ill; for many years in their time the Prime Minister had, over 
and above the labor of managing Parliament, to manage the woman— 
sometimes the queen, sometimes the mistress—who managed the sov¬ 
ereign; George III. interfered unceasingly, but he did harm unceas¬ 
ingly; George IV. and William IV. had no steady continuing guid¬ 
ance, and were unfit to give it. Bagehot on The English Constitution , 
Vol. II, The Federalist, Number III. 

It has been a surprise to many Americans that England yet 
holds on to her monarchial form of government. For nearly 
a century it has been a monarchy in form only. The govern¬ 
ment has been all the while changing; one by one all the pow¬ 
ers and functions that are at all real or sovereign have been 
taken from the Crown. A few rights which the ordinary citi- 


70 Government, Cabinet and Presidential 

zen does not possess are still left and reserved, and a few acts 
and ceremonials are still required to be performed by the 
Crown. They are, however, merely perfunctory and could as 
easily be performed without as with a Crown. 

A half century ago Mr. Bagehot said that the chief func¬ 
tions of the Crown and House of Lords were that they gave dig¬ 
nity and respect to the government and added a theatrical air 
or appearance to governmental affairs. The evolution has con¬ 
tinued in the same direction which he described in his English 
Constitution until it is doubted if they now perform these 
functions to such an extent as to render them any longer 
necessary appendages. 

It is now probable that their functions in the government are 
much like the appendix and tonsils of the human body, very 
liable to cause disease and their removal would add to the 
general health and vigor of the government. As it is now 
becoming popular for those who can pay the price to have 
the appendix and tonsils removed, it will no doubt become 
popular to remove such useless appendages from the govern¬ 
ment. One effect of the great world war now going on will 
be to apply the surgeon’s knife to many if not all those use¬ 
less and troublesome appendages to Civil Government. 

It is said that the war is being waged to make the world 
safe for democracy. It can never be safe so long as more than 
half the world is ruled by a monarch, whether he be King, 
Emperor or Czar. In England the king has no power; in 
Prussia, he has all, not only of Prussia, but of the whole Ger¬ 
man Empire. In theory he has not but in practice he has. 
The same was true of Russia until the government was de¬ 
stroyed by a violent revolution. So it will be with Prussia, 
and the German Empire. The people must rule, and monarchy 
is doomed, and the world will be rid of one of the greatest 
causes and sources of wars. 

Republics and Democracies may and do have wars, but they 
are not so apt so to do, as monarchies or aristocracies. In 
theory, of course, there are now very few if any absolute mon¬ 
archies, yet where the powers are vested in some other men or 
body of men, when the monarch controls, the government is 
just as bad or worse, than if it were in theory and in fact 
an absolute monarchy. 

In the British Government the danger of encroachments on the 
rights of the people is understood to be confined to the executive 
magistrate. The representatives of the people in the Legisalture are 


Government, Distinguishing Features of American 


71 


not only exempt themselves from distrust, 'but are considered as suf¬ 
ficient guardians of the rights of their constituents against the dan¬ 
ger from the Executive. Hence it is a principle, that the Parliament 
is unlimited in its power; or, in their own language, is omnipotent. 
Hence, too, all the ramparts for protecting the rights of the people— 
such as their Magna Charta, their Bill of Rights, etc.—are not reared 
against the Parliament, but against the royal prerogative. They are 
merely legislative precautions against executive usurpations. Under 
such a government as this, an exemption of the press from previous 
restraint, by licensers appointed by the King, is all the freedom that 
can be secured to it. 

In the United States the case is altogether different. The People, 
not the Government, possess the absolute sovereignty. The Legis¬ 
lature, no less than the Executive, is under limitations of power. 
Encroachments are regarded as possible from the one as well as from 
the other. Hence, in the United States the great and essential rights 
of the people are secured against legislative as well as against ex¬ 
ecutive ambition. They are secured, not by laws paramount to pre¬ 
rogative, but by the constitutions paramount to laws. This security 
of the freedom of the press requires that it should be exempt not 
only from previous restraint by the Executive, as in Great Britain, 
but from legislative restraint also; and this exemption, to be effectual, 
must be an exemption not only from the previous inspection of li¬ 
censers, but from the subsequent penalty of laws. 4 Writings of 
Madison, p. 542-5^3. 

American Government Distinguished From Others 

Two distinguishing features of American Government are 
as follows: It first discarded the theory now admitted by the 
world to be fallacious and fictitious, called the Divine Right 
of Kings, and denied that the right of one to govern others 
is either divine, descendible, or hereditable. It declared and 
adopted the theory, now almost universally accepted, that 
the people themselves are the true and real sovereigns, that 
Nature endowed each with natural rights and that some are 
inalienable, that governments are or should be founded by the 
people alienating or granting to the government some of these 
rights for the better protection of all, and to guarantee the 
maintenance and protection of others that are inalienable to 
each and to all; that governments have or should have these 
rights and powers only which the people grant to them; that 
it is not the proper functions of governments to grant rights 
and powers to the people, but to receive such rights from the 
people, and then exercise the rights and powers so granted, 
to protect the people in the enjoyment of those rights, and 
principles not granted, not only against the government itself 
so created, but against themselves who created it. A govern- 


72 Government, Distinguishing Features of American 

ment is created by the people just as the people are created by 
Nature. The creature ought not to be more powerful than the 
creator. 

Other distinguishing features of the American Government 
is that it divides the government to be created into two parts, 
one local or domestic and the other general or foreign; one 
called the State, the other United States. The powers 
granted by the people to these respective parts are granted 
to each respectively, and as granted to the one, are denied to 
the other, except as to a few rights and powers which are 
granted to both with certain limitations thereon, that the 
powers shall be exercised only for certain purposes. Each of 
these two great parts are again subdivided into three parts, 
and certain rights and powers granted to each of these sub¬ 
divisions are denied to the others. Our forefathers were not 
willing to put all their eggs in one basket. They knew it was 
human nature to abuse power, that power is the only check 
against power. They therefore made each power granted a 
check upon some other power granted, and thus secured sta¬ 
bility and permanency. 

The English system on which have been modeled, of course with 
many variations, the system of France, Belgium, Holland, Italy, Ger¬ 
many, Hungary (where, however, the English scheme has been com¬ 
pounded with an ancient and very interesting native-born constitu¬ 
tion), Sweden, Norway, Spain, Denmark, and Portugal, as well as 
the constitutions of the great self-governing English colonies in 
North America and Australia—this system placed at the head of the 
state a person in whose name all executive acts are done, and who is 
(except in France) irresponsible and irremovable. His acts are done 
by the advice and on the responsibility of ministers chosen nominally 
by him, but really by the representative of the people—usually, but 
not necessarily, from among the members of the legislature. Bryce's 
American Commonwealth, Vol. I, 271. 

In 1787, when the Constitutional Convention met at Philadelphia, 
the Cabinet system of government was in England still immature. 
It was so immature that its true nature had not been perceived. And 
although we now can see that the tendency was really towards the 
depression of the Crown and the exaltation of Parliament, men might 
well, when they compared the influence of George III., with that ex¬ 
ercised by George I., argue in the terms of Dunning’s famous resolu¬ 
tion, that “the power of the Crown has increased, is increasing, and 
ought to be diminished.” Bryce's American Commonwealth, Vol I 
278. 

Montesquieu’s treatise was taken by the thinkers of the next gen¬ 
eration as a sort of Bible of political philosophy. Hamilton and Madi¬ 
son, the two earliest exponents of the American Constitution they 
had done so much to create, cite it in the Federalist much as the 


Government, Distinguishing Features of American 


73 


schoolmen cite Aristotle, that is, they cite it as an authority which 
everybody will recognize to be binding; and Madison in particular 
constantly refers to this separation of the legislative, executive, and 
judicial powers as the distinguishing note of a free government. 
Bryce's American Commonwealth, Vol. I, 276. 

From their colonial experience, coupled with these notions of the 
British Constitution, the men of 1787 drew three conclusions: Firstly, 
that the vesting of the executive and the legislative powers in differ¬ 
ent hands was the normal and natural feature of a free government. 
Secondly, that the power of the executive was dangerous to liberty, 
and must be kept within the well-defined boundaries. Thirdly, that 
in order to check the head of the state it was necessary not only to 
define his powers, and appoint him for a limited period, but also to 
destroy his opportunities of influencing the legislature. Conceiving 
that ministers, as named by and acting under the orders of the Presi¬ 
dent, would be his instrument rather than faithful representatives of 
the people, they resolved to prevent them from holding this double 
character, and therefore forbade “any person holding office under the 
United States’" to be a member of either House. They deemed that 
in this way they had rendered their legislature pure, independent, 
vigilant, the servant of the people, the foe of arbitrary power. Om¬ 
nipotent, however, the framers of the Constitution did not mean to 
take it. They were sensible of the opposite dangers which might fol¬ 
low from a feeble and dependent executive. The proposal made in 
the first draft of the Constitution that Congress should elect the 
President, was abandoned, lest he should be merely its creature and 
unable to check it. To strengthen his position, and prevent intrigues 
among members of Congress for this supreme office, it was settled 
that the people should themselves, through certain electors appointed 
for the purpose, choose the President. Bryce's American Common- 
Ith, Vol. l, 277. 



y The House is strong, because it can call the ministry to account 
for every act, and can, by refusing supplies, compel their resignation. 
The ministry are not defenseless, because they can dissolve Parlia¬ 
ment, and ask the people to judge between it and them. Parliament, 
when it displaces a ministry, does not strike at executive authority: 
it merely changes its agent. The ministry, when they dissolve Par¬ 
liament, do not attack Parliament as an institution: they recognize 
the supremacy of the body in asking the country to change the in¬ 
dividuals who compose it. Both the House of Commons and the min¬ 
istry act and move in full view of the people, who sit as arbiters, pre¬ 
pared to judge in any controversy that may arise. The House is in 
touch with the people, because every member must watch the lights 
and shadows of sentiment which play over his own constituency. The 
ministry are in touch with the people, because they are not only 
themselves representatives, but are heads of a great party, sensitive 
to its feelings, forced to weigh the effect of every act they do upon 
the confidence which their party places in them. Bryce's American 
Commonwealth, Vol. I, 280. 

In England, if the executive ministry displaces the House of Com¬ 
mons, the House passes an adverse vote. The ministry have their 


74 


Government, By Party 


choice to resign or to dissolve Parliament. If they resign, a new min¬ 
istry is appointed from the party which has proved itself strongest in 
the House of Commons; and co-operation being restored between the 
legislature and the executive, public business proceeds. If, on the other 
hand, the ministry dissolve Parliament, a new Parliament is sent up 
which, if favorable to the existing cabinet, keeps them in office, if 
unfavorable, dismisses them forthwith. Accord is in either case re¬ 
stored. Bryce's American Commonwealth, Vol. 1, 281. 

In America a dispute between the President and Congress may 
arise over an executive act or over a bill. If over an executive act, 
an appointment or a treaty, one branch of Congress, the Senate, can 
check the President, that is, can prevent him from doing what he 
wishes, but cannot make him do what they wish. If over a bill 
which the President has returned to Congress, unsigned, the two 
Houses can, by a two-thirds majority, pass it over his veto, and so 
end the quarrel; though the carrying out of the bill in its details 
must be left to him and his ministers, whose dislike of it may render 
unwilling and therefore unsuitable agents. Bryce's American Com¬ 
monwealth, Vol. I, 282. 

There exists between England and the United States a difference 
which is full of interest. In England the legislative branch has be¬ 
come supreme, and it is considered by Englishmen a merit in their 
system that the practical executive of the country is diredtly respon¬ 
sible to the House of Commons. In the United States, however, not 
only in the national government, but in every one of the States, the 
exactly opposite theory is proceeded upon—that the executive should 
be wholly independent of the legislative branch. Americans under¬ 
stand that this scheme involves a loss of power and efficiency, but 
they believe that it makes greatly for safety in a popular govern¬ 
ment. They expect the executive and the legislature to work to¬ 
gether as well as they can, and public opinion does usually compel 
a degree of co-operation and efficiency which perhaps could not be 
expected theoretically. It is an interesting commentary on the ten¬ 
dencies of democratic government, that in America reliance is com¬ 
ing to be placed more and more, in the nation, in the state, and in 
the city, upon the vote of the Executive as a protection to the com¬ 
munity against the legislative branch. Weak Executives frequently - 
do harm, but a strong Executive has rarely abused popular confidence. 
On the other hand, instances where the Executive, by the use of his 
veto power, has arrested mischiefs due to the action of the legislature 
are by no means rare. This circumstance leads some Americans to 
believe that the day is not far distant when in England some sort of 
veto power, or other constitutional safeguard, must be interposed to 
protect the people against their Parliament. Bryce's American Com¬ 
monwealth, Vol. I, 283. 


Party Government 

It is another and remarkable consequence of the absence of cabinet 
government in America that there is also no party government in the 
European sense. Party government in France, Italy, and England 
means, that one set of men, united, or professing to be united, by 


Government, By Party 


75 


holding one set of opinions, have obtained control of the whole ma¬ 
chinery of government, and are working it in conformity with those 
opinions. Their majority in the country is represented by a ma¬ 
jority in the legislature, and to this majority the ministry of necessity 
belongs. The ministry is the supreme committee of the party, and 
controls all the foreign as well as domestic affairs of the nation, be¬ 
cause the majority is deemed to be the nation. It is otherwise in 
America. Men, no doubt, do talk of one party as being “in power,” 
meaning thereby the party to which the then President belongs. But 
they do so because that party enjoys the spoils of office, in which to 
so many politicians the value of power consists. They do so also be¬ 
cause in the early days the party which prevailed in the legislative 
usually prevailed also in the executive department, and because the 
presidential election was, and still is, the main struggle which pro¬ 
claimed the predominance of one of other party. Bryce's American 
Commonwealth, Vol. I, 285. 

There is in the American government, -considered as a whole, a 
want of unity. Its branches are unconnected; their efforts are not 
directed to one aim, do not produce one harmonious result. Bryce's 
American Commomoealth, Vol. I, 28 7. 

A President can do little, for he does not lead either Congress or 
the nation. Congress cannot guide or stimulate the President, nor 
replace him by a man fitter for the emergency. The Cabinet neither 
receive a policy from Congress nor give one to it. Each power in 
the state goes its own way, or wastes precious moments in discussing 
which way it shall go, and that which comes to pass seems to be a 
result not of the action of the legal organs of the state, but of some 
larger force which at one time uses their discord as it means, at an¬ 
other neglects them altogether. Bryce's American Commonwealth, 
Vol. I, 288. 

The English Constitution, which we admire as a masterpiece of 
delicate equipoises and complicated mechanism, would anywhere but 
in England be full of difficulties and dangers. It stands and prospers 
in virtue of the traditions that still live among English statesmen 
and the reverence that had ruled English citizens. It works by a 
body of understandings which no writer can formulate, and of habits 
which centuries have been needed to instill. So the American peo¬ 
ple have a practical aptitude for politics, a clearness of vision and 
capacity for self-control never equalled by any other nation. In 1861 
they brushed aside their darling legalities, allowed the executive to 
exert novel powers, passed lightly laws whose constitutionality re¬ 
mains in doubt. Romans could not have been more energetic in their 
sense of civic duty nor more trustful to their magistrates. When 
the emergency had passed away the torrent which had overspread the 
plain fell back at once into its safe and welbworn channel. The reign 
of legality returned; and only four years after the power of the 
executive had reached its highest point in the hands of President 
Lincoln, it was reduced to its lowest point in those of President 
Johnson. Such a people can work any Constitution. The danger for 
them is that this reliance on their skill and their star may make them 


76 


Government, By Party 


heedless of the faults of their political machinery, slow to devise im¬ 
provements which are best applied in quiet times. Bryce's American 
Commonwealth , Vol. 1, 290. 

Any European student of politics who wishes to understand the 
problem of government in the United States, whether of city or any 
other form of government, must first of all transfer himself, if he 
can, to a point of view precisely the opposite of that which is natural 
to him. This is scarcely, if at all, less true of the English than of the 
continental student. In England as upon the continent, from time 
immemorial, government has descended from the top down. Until 
recently, society has accepted the ideal in Europe, almost without 
protest, that there must be governing classes, and that the great ma¬ 
jority of men must be governed. In the United States that idea does 
not obtain, and, what is of scarcely less importance, it never has ob¬ 
tained. No distinction is recognized between governing and governed 
classes, and the problem of government is conceived to be this, that 
the whole of society should learn and apply to itself the art of gov¬ 
ernment. Bearing this in mind, it becomes apparent that the im¬ 
mense tide of immigration into the United States is a continually 
disturbing factor. The immigrants come from many countries, a 
very large proportion of them being of the classes which, in their 
old homes, from time out of mind, have been governed. Arriving in 
America, they shortly become citizens in a society which undertakes 
to govern itself. However well-disposed they may be as a rule, they 
have not had experience in self-government, nor do they always share 
the ideas which have expressed themselves in the Constitution of the 
United States. This foreign element settles largely in the cities of 
the country. Bryce's American Commonwealth, Vol. I, 620-1. 

The House of Commons is like the lower House of Repre¬ 
sentatives, an elective body. The English, unlike the Ameri¬ 
can house, is not elected to make laws, but to elect the cabinet, 
which is the real sovereign and which, in fact, makes and un¬ 
makes the laws, Constitutional and Statutory. The members 
of the House of Commons serve as the American Presidential 
electors. They are to choose the men who not only are to ad¬ 
minister the government, but may change the form of gov¬ 
ernment. The house, however, elects whom it chooses, not 
whom it was elected to choose. It only chooses those whom 
it thinks the nation will follow. The House of Commons 
does not rule England; but it does elect those who do, that is 
the Cabinet. The majority of Parliament support whatever 
certain leaders support and these leaders are members of the 
Cabinet and support whatever the Cabinet advises. 

“In matters of government,” says Judge Cooley, “America has be¬ 
come the leader and the example for all enlightened nations. Eng¬ 
land and France alike look across the oceans for lessons which may 
form and guide their people. Italy and Spain follow more distantly; 


Government, By Party 


77 


and the liberty-loving people of every country take courage from 
American freedom, and find augury of better days for themselves from 
American prosperity. But America is not so much an example in 
her liberty as in the covenanted and enduring securities which are 
intended to prevent liberty degenerating into license, and to estab¬ 
lish a feeling of trust and repose under a beneficent government, 
whose excellence, so obvious in its freedom, is still more conspicuous 
in its careful provision for permanence and stability. 

“Every European state has to fear not only the rivalry but the 
aggression of its neighbors. Even Britain, so long safe in her in¬ 
sular home, has lost some of her security by the growth of steam 
navies, and has in her Indian and colonial possessions given pledges 
to Fortune all over the globe. She, like the Powers of the European 
Continent, must maintain her system of government in full efficiency 
for war as well as for peace, and cannot afford to let her arguments 
decline, her finances become disordered, the vigor of her executive 
authority be impaired, sources of internal discord continue to prey 
upon her vitals. But America lives in a world of her own, ipsa suis 
pollens opiOus, nihil indiga nostri. Safe from attack, safe even from 
menace, she hears from afar the warring cries of E'uropean races and 
faiths, as the gods of Epicurus listened to the murmurs of the un¬ 
happy earth spread out beneath their golden dwellings.” Bryce's 
American Commomvealth, Vol. I, 302-3. 

Were George Washington to return to earth, he might be as great 
and useful a President as he was a century ago. Neither the legis¬ 
lature nor the executive has for a moment threatened the liberties of 
the people. The States have not broken up the Union, and the Union 
has not absorbed the States. No wonder that the Americans are proud 
of an instrument under which this great result has been attained, 
which has passed unscathed through the furnace of civil war, which 
has been found capable of embracing a body of commonwealths, three 
times as numerous, and with twenty-fold the population of the original 
States, which has cultivated the political intelligence of the masses 
to a point reached in no other country, which has fostered and been 
found compatible with a larger measure of local self-government than 
has existed elsewhere. Nor is it the least of its merits to have made 
itself beloved. Bryce's American Commonwealth, Vol. I, 30Jf. 

Compare the criminal laws of England and other Eastern 
countries with those instituted and promoted by our written 
Constitutional and dual Government. Judge Dillon, in a lec¬ 
ture, has done this. He says: 

Sir James Mackintosh in 1819, in moving in Parliament for a com¬ 
mittee to inquire into the condition of the criminal law, stated that 
there were then “two hundred capital felonies on the statute book.” 
Undoubtedly this apparent severity, for the reasons stated by Sir 
James Stephen, is greater than the real severity, since many of the 
offences made capital were of infrequent occurrence; and juries, 
moreover, often refused to convict, and persons capitally convicted 
for offences of minor degrees of guilt were usually pardoned on con¬ 
dition of transportation to the American and afterwards the Austra- 


78 


Government , Division of Powers of 


lian colonies. But this learned author admits that, “after making 
all deductions on these grounds, there can be no doubt that the legis¬ 
lation of the eighteenth century in criminal matters was severe to 
the highest degree, and destitute of any sort of principle or system.” 
The Laws and Jurisprudence of England and America, 366. 

The Edinburgh Review censuring, in 1826, the injustice of denying 
prisoners accused of felony the right to be defended by counsel, de¬ 
clared, “The judges and Parliament would have gone on to this day, 
hanging by wholesale for forgeries of bank notes, if juries had not 
become weary of continual butchery and resolved to acquit.” And the 
writer added these words,—and each of which legislators should 
“weigh like a diamond:” “The proper execution of the laws must 
always depend in a great measure upon public opinion; and it is un¬ 
doubtedly most discreditable to any man intrusted with power, when 
the governed turn around upon their governors, and say, ‘Your laws 
are so cruel, or so foolish, we cannot and will not obey them.’ ” 

Hallam, writing about the year 1818, says: “A convicted criminal 
is at present the stricken deer of society, in whose disgrace his kindred 
shrink from participating, and whose memory they strive to forget.” 
The Laws and Jurisprudence of England and America, 267. 

The severity of the English criminal law, in addition to its in¬ 
justice to the prisoner, was productive of two evil consequences of 
great moment, one of which operated on juries and the other on the 
judges. Where the penalties were disproportionately severe, the hu¬ 
manity of juries often led them, by what Blackstone calls “pious per¬ 
juries,” to acquit in cases where the prisoner’s guilt was clear. The 
same consideration operated with the judges, who mercifully allowed 
defendants to escape on such fine-spun technical objections to indict¬ 
ments, and frivolous variances, as made criminal trials seem like a 
game of chance or a judicial farce. “Such scandals,” says Sir James 
Stephen, “do not seem to have been unpopular. Indeed, I have some 
doubt whether they were not popular, as they did mitigate, though in 
an irrational, capricious manner, the severity of the old ' criminal 
law.” The Laios and Jurisprudence of England and America, 368-9. 

Division of Powers 

England professes to have a division of powers, and their 
execution entrusted to separate sets of persons. This is true 
in theory only; in practice, there is no such division or separa¬ 
tion of powers, either in times of peace or war. In America, 
in times of peace, the separation and division is both in theory 
and practice; in time of war, it is like England, only in theory. 
Then the President exercises or directs the exercise of all 
powers, except the Judicial, which so far is always independ¬ 
ent, except, as to Habeas Corpus proceedings. In England, 
checks and balances exist iit theory only; in practice there is 
none. In America, they exist during peace both in theory and 
practice; during war, they exist to a very limited extent and 


Government, Division of Powers of 


79 


almost disappear. In England, owing to the character and 
thoughts of the people, no government except a limited mon¬ 
archy could succeed. Thoughts are now changing on the sub¬ 
ject. In America, no kind of monarchial government could 
succeed or even exist long in time of peace, though in time of 
war, in practice, the government is monarchial. 

In England, the people demand that the government have 
dignity and power. In America, the people demand that the 
government be efficient and protect their liberty. The least 
power it can possess to protect liberty is considered best. In 
Europe, the people serve the government; in America, the 
government serves the people. In Europe, the government 
is the master or lord; in America, the people are the lords and 
master, the government their servant and agent. Jefferson’s 
maxim was “that Government governeth best which governs 
least.” European governments are governments of men; the 
United States is a government of laws and not of men. 

Mr. Bagehot, in his book on England’s Constitution, and 
in other writings, has given some interesting lessons on the 
English Government, as compared with that of the United 
States. He contends that English monarchy is a political 
and logical necessity, owing to the dispositions and tradi¬ 
tions of the English people, and that such a government, for 
this same reason, is not only improbable in America, but im¬ 
possible. He is an interesting writer, but he is not the superior 
' of Mr. Bryce. He shows nothing like the familiarity of Ameri¬ 
can governments, Constitutions and institutions, nor is he able 
to compare and contrast the two kinds, as clearly as does Mr. 
Bryce. He, however, does have some new ideas on the sub¬ 
ject, or he has expressed the same thoughts in attractive 
words, phrases and sentences. This is especially true in his 
divisions of the two powers of government into those of 
“dignity” and “efficiency,” and in showing how the one ex¬ 
cels the other in the two kinds of powers. He says the dig¬ 
nified parts of the English government are complicated, old 
and venerable, while its efficient parts are simple and modern. 
He contends that the crowning virtue of the English govern¬ 
ment is not in the separation of its powers into the three 
departments, Legislative, Executive, and Judicial, but in the 
fusion of the first two into a Cabinet, which exercises the real 
sovereign power, no matter where or in whom it is in theory 
vested by the Constitution. His theory is that England is 
really and practically governed by the Cabinet, and not by 


80 


Government, Division of Powers of 


the Parliament, or the King, as is usually stated and believed. 
He shows that while the House of Commons creates the Cabi¬ 
net, that the creature controls the Creator, and is created for 
the purpose of so controlling. 

The Cabinet, in England, is not the mere agent of the 
Executive or Legislative departments, as the Cabinet, and 
Committees, are in the United States; but is really the gov¬ 
ernment, and the other departments must do the Cabinet’s 
bidding, or others will be elected or selected who will do their 
bidding. This Cabinet does not absorb either the Legislative 
or Executive power, but it fuses the two, or is the lever that 
controls both. Mr. Bagehot says of the English Cabinet : 

The cabinet which was chosen by one House of Commons has an 
appeal to the next House of Commons. The chief committee of the 
Legislature has the power of dissolving the predominant part of that 
legislature—that which at a crisis is the Supreme Legislature. The 
English system, therefore, is not an absorption of the two. Either the 
cabinet legislates and acts, or else it can dissolve. It is a creature, 
but it has the power of destroying its creators. It is an executive 
which can annihilate the Legislature, as well as an executive which 
is the nominee of the Legislature. It is made, but it CAN unmake; 
it was derivative in its origin, but it is destructive in its action. 
Bagehofs English Constitution, Vol. II, Federalist, Number I. 

The English Cabinet, which in fact is the government, 
forces legislation by compelling an election of other leislators, 
or of threats to resign. No such thing is possible in the United 
States. The whole of the Cabinet could resign without af¬ 
fecting any change in the law or creating much commotion 
in the House, Senate, or among the people. The resignations 
in the Cabinet of the United States are usually because of 
disagreement with the President who appoints and removes 
them, and fills vacancies. Sometimes a member resigns be¬ 
cause of difference of views between him and other members 
of the Cabinet. An historical instance was when Jefferson re¬ 
signed because of difference of views between him and Hamil¬ 
ton, as to matters of national affairs, though none between 
him and the President. Washington used his Cabinet to ad¬ 
vise him, and not to do his bidding, while of course, he was 
not a man without opinions on those questions, he was one 
who sought advice, and appointed to his Cabinet the ablest 
statesmen in the land, and who were known to entertain dif¬ 
ferent views on many questions. He wanted to hear the best 
that could be said on both sides of the question, and he heard 
it and was therefore well advised. It is to be regretted that 


Government, Division of Powers of 


81 


all the Presidents did not follow his example. The majority, 
however, have appointed their political friends and often par¬ 
tisans on the same side with the President. 

They are also often appointed, not for advising the Presi¬ 
dent, but for the doing of the will of the President and the 
party which elected him. They are expected to do the will of 
the President, and the President’s will is usually of the party 
which elected him. In theory, however, the Cabinet is ex¬ 
pected to advise the President, not to command, and the Presi¬ 
dent is expected to advise the legislative department of the 
need of the government, but not to command. 

During the administration of Mr. Johnson, who was serving 
out the remainder of the second term of Mr. Lincoln, who was 
assassinated soon after the beginning of his second term, there 
arose a serious feud and difference between Congress and Mr. 
Johnson, when neither would advise with the other, and if 
either advised the other, the advice was not heeded. The 
members of his Cabinet had been appointed or selected by 
Mr. Lincoln, and approved by the Senate, and they had to 
choose between Congress and the President. All of them 
went with the President except Mr. Stanton, Secretary of 
War, who sided with Congress, and declined to follow instruc¬ 
tions of the President. The President called for his resigna¬ 
tion, and he declined to resign. The President attempted to 
remove him, Congress having passed statutes to prevent the 
President from so removing Cabinet or other officers. The 
President’s disregarding this statute was made one of the 
grounds of the impeachment proceedings against the Presi¬ 
dent. The bone of contention between Congress and the 
President was the reconstruction of the Southern States which 
had seceded. Congress took the position that these States 
were not a part of the Union, and that they had to be thor¬ 
oughly reconstructed before they could be re-admitted into 
the Union. The terms prescribed for their reconstruction were 
such that no one, except negroes, former slaves, carpet-baggers 
and scalawags could conscientiously take part in the recon¬ 
struction or government of the States. The plans prepared 
by Congress 'were intended to exclude all those who had taken 
part in or given aid and comfort to secession or of the Con¬ 
federate Army from any participation in the New State gov¬ 
ernments to be created under the Acts of Congress. To this 
end, they put the people of these States under military order 


82 


Government, Division of Powers of 


rather than civil law, until the State governments should be 
established after the manner prescribed by these Reconstruc¬ 
tion Acts. 

These Acts not only attempted to make the negro the equal 
of his former master, but his superior, as to the right to par¬ 
ticipate in the State governments to be established. They also 
attempted to force social equality between the whites and 
negroes which was of course repugnant and contrary to the 
laws of nature, and contrary to the law of good morals. These 
laws were the most cruel ever written on American statute 
books, and were intended to humiliate and degrade the peo¬ 
ple of the Southern States, as much as to improve or elevate 
the condition of the negro. They were in the nature of re¬ 
prisals as for the Acts of the people in the Southern States in 
connection with secession, slavery and war. The President 
was not willing to go to the length that Congress was, and he 
therefore vetoed all these Acts, but they were all easily passed 
over his veto. The fact that Johnson was a Southern man, 
no doubt, aggravated Congress and made it more against 
the Southern people, although, he was not a slave-holder, and 
did not believe in Slavery, opposed Secession, and took sides 
with the Northern Army. For this reason he was neither 
liked by the people of the South nor the North. His position 
was unfortunate, both on his own account, and that of the 
Southern, as well as the Northern, States. 

Lincoln’s death was the worst thing that could have hap¬ 
pened to the Southern States. It was a much more serious 
blow to the South than to the North. Congress had followed 
his advice through the entire war. In fact, he was the idol 
of the majority of the people of the United States. Public 
opinion was with him, and Congress would not have opposed 
him as it did Johnson. The South would have been recon¬ 
structed according to his plans, and not that of Congress. 
Johnson was really only trying to carry out the plans of Lin¬ 
coln. They were not his plans, he conceded they were Lin¬ 
coln’s, and all his Cabinet, with the one exception, conceded 
it and proclaimed it. The great leader was gone, however, 
and Congress was not willing to follow the advice of his suc¬ 
cessor, though it was the same as would have been that of 
Lincoln’s. It thus appears that there is, in America, a division 
of powers and checks and balances, in practice as well as in 
theory. In times of peace, no one department can usurp the 
powers of or control the others; and that the Cabinet is power- 


Government, Division of Powers of 83 

less to control either. In times of war, however, by common 
consent, the President directs, if he does not control, all the 
departments except the Judicial. Occasionally there is some 
opposition by some members of Congress, but it has never 
been effectual. 

During the war of 1812, while Mr. Madison was President, 
there was considerable opposition. Some thought that the 
war should have been against France as well as England. 
Some were really in sympathy with England. They were also 
opposed to the Embargo declared by the President and Con¬ 
gress, similar to the one declared by Jefferson and Congress 
in 1807. This shut off all commerce, with almost all of 
Europe, and those engaged in commerce violently opposed 
the policy, and assailed the constitutionality of the Acts. 
They also opposed the invasion of Canada, and denied the 
power to send troops across the border. There were many 
threats of secession by some of the Eastern States. The Hart¬ 
ford Convention was called by those who opposed the course 
being pursued by the Administration. Its purpose was cer¬ 
tainly to protest against the policy of the Administration. It 
was claimed by many that the purpose was to secede or with¬ 
draw from the Union; but the members of it denied any such 
purpose, and long after, published the proceedings which 
were held in secret to vindicate their claims that it was not 
revolutionary nor for the purpose of secession. Their acts, 
however, were deemed as being disloyal and unpatriotic by 
the friends of the administration and the masses of the peo¬ 
ple. Whatever was the motives, objects or purposes, it killed 
the Federal party, and it never could be revived thereafter. 
The war really ended while the meeting was in session, so it 
could have had no effect on the war. What might have been 
the result, had the war not ended, no one could know. 

There was also strong opposition to the war between the 
States, both in the Northern and Southern States, but it soon 
subsided, the masses following the action of their respective 
States. There were some exceptions, but very few, except in 
the border States, such as Missouri, Kentucky, and Virginia, 
where the division was considerable. In the Northern States, 
those opposing the war were called Copper-heads, while those 
in the Southern States were called Moss-Backs, Bush-Whack¬ 
ers, and Scalawags. No matter what were their motives or 
their purposes, they were disgraced and ruined socially and 
politically. The public held them as traitors, though they 


84 


Government, Division of Powers of 


were not such in fact or in law. No nation or people will 
tolerate disloyalty or lack of patriotism in its citizens, though 
it amounts not to treason. When war is declared personal 
views or wishes count for nothing. The people must then 
stand together. There is then no time or place for politics or 
policies. All must do the bidding of the government. The 
government is then all, the people or the individual nothing. 

During war American government is not unlike all European 
governments, however much it may differ during peace. 
There then must be unity of action, whatever difference of 
thought there may be. In practice, during war the United 
States is a monarchy, not a republic or a democracy. No war 
could be successfully carried on by a republican or democratic 
form of government, that is in practice. They may be demo¬ 
cratic or republican in theory, but in practice, to be efficient in 
war, they must be monarchial, and almost despotic. Any war, 
continued very long, will destroy all the democracy or re¬ 
publicanism in any government. Democracies and republics 
are suited for peace; but hot for war. It seems that it is as 
impossible to operate a government on democratic principles, 
during a war, as it is to operate an army on such principles. 
Wars may be waged for the purpose of destroying monarchial 
or despotic governments, and they may be successful, but the 
government or the people who wage the war must do so ac¬ 
cording to the principles of the monarchial or despotic gov¬ 
ernment which they seek to destroy. Force can be overcome 
only by force. Concentrated forces can be overcome or wasted 
only by concentrated forces. Democracies, and republics, di¬ 
vide and distribute the forces of the people; monarchies, 
aristocracies and oligarchies collect and concentrate the forces. 
A concentration of all the powers of a great nation of people 
into the hands and will of one or a few men only can be suc¬ 
cessfully met and resisted and divided only by a like concen¬ 
tration and centralization of powers of another or other gov¬ 
ernment, nation or people. 

It is a law of nature which man cannot change, that force 
and power can be checked, controlled or destroyed only by 
like force and power, offered in an opposite direction. A 
military government or people can be checked or destroyed 
only by a more powerful military government. It is folly to 
talk of maintaining a democratic government during a war. 
For and during the great World War, Lloyd George is King, 
Czar, and dictator of England, and her Colonies; Clemenceau 


Government, Bij the People 


85 


is the same for France; President Wilson, the same for the 
United States. _The other departments of the respective gov¬ 
ernments, and offices thereof high and low, are expected to da 
the will of him who is carrying on the war. To refuse to obey 
and to aid in conveying this will is at once to class those so 
refusing as enemies to the government, as slackers, if not 
traitors. The press, during war, molds public opinion even 
more than in time of peace, and it will not tolerate difference 
of opinion as to the best mode or method of conducting a war. 
The people may divide on the question as to whether or not 
war shall be declared, but after it is declared, there must be 
but one man, and all must do his bidding. This seems to be 
a natural law and to be higher than any written or umvritten 
Constitutional law. 

The People May Protect Themselves Against Themselves. 

Judge Dillon has well described the American mode: 

The absolutely unique feature of the political and legal institutions 
of the American republic is its written constitutions, which are or¬ 
ganic limitations whereby the people by an act of unprecedented wis¬ 
dom have, “in order to establish justice, to promote the general wel¬ 
fare and secure the blessings of liberty to themselves and their pos¬ 
terity,” 'protected themselves against themselves. . What renders this 
the more extraordinary is that these constitutions are self-imposed 
restraints. The spectacle is that of the acknowledged possessors of 
all political power voluntarily circumscribing and limiting the plenary 
and unrestrained use of it. History affords many examples where the 
holders of political power have been forced to surrender or to curtail 
it for the general good; but the example of the people constituting 
American political communities in limiting, by their own free will, 
the exercise of their own power, stood alone when this sublime sacri¬ 
fice was made, and it has not been followed in any country in Eu¬ 
rope, nor successfully put in operation elsewhere than in the United 
States. I said that in this way the people had protected themselves 
against themselves; and this they have done by making the Constitu¬ 
tion in reality what, in its sixth article, it expressly declares itself 
to be, namely, “the supreme laic of the land, binding the judges in 
every State, anything in the constitution or laws of any State to the 
contrary notwithstanding.” The Laws and Jurisprudence of England 
and America, 196-7 . 

Political and speculative writers there are in Europe who still main¬ 
tain that it is idle, unwise, or at any rate self-contradictory, for the 
sovereign or supreme power in a State to put limits upon itself; but 
more than a century ago the people of this country did restrain the 
exercise of their own power by organic limitations upon all the or¬ 
gans of the State. The wisdom and general efficiency of this political 
invention, for such it was, have been vindicated and established by 


86 


Government, By the People 

our long experience. The device—the idea—the political conception, 
if I may so term it—of written constitutions, belongs to the states¬ 
men who founded our political institutions. The Laws and Juris¬ 
prudence of England and America, 197, footnote. 

The devices which our constitutions provide to prevent precipitate 
action of the popular will are single and simple in principle, but 
elaborate, though not complex, in arrangement. They may thus be 
grouped and shortly stated: (a) Three co-ordinate departments, and 
the separation and distribution of all of the powers of the govern¬ 
ment into these departments,—each checking the other; (b) a sys¬ 
tem of representation with a double chamber,—each a check on the 
other; (c) the insertion of guarantees of primordial and fundamental 
rights,—Magna Charta enlarged and perfected,—into the Constitu¬ 
tion; (d) distribution of powers between the States and the Federal 
Union; and (e) an independent judiciary, made the guardian of the 
Constitution with the crowning power and duty to declare unconsti¬ 
tutional statutes to be void,—all to the end that there may be se¬ 
cured “a government of laws and not of men.” The Laws and Juris¬ 
prudence of England and America, 198. 

There has always been and always will be strong disbe¬ 
lievers in popular republican governments, such as our own is. 
Judge Dillon thus speaks of them: 

Disbelievers in republican institutions had predicted early ship¬ 
wreck on these rocks, and when it came not, they simply postponed 
the period of fulfillment. 

These prophecies have happily hitherto proved false,—so historic¬ 
ally and signally false that as strong an unbeliever in popular gov¬ 
ernment as Sir Henry Maine, speaking of the American Union and 
its unexampled career, was constrained, in 1885, to confess and de¬ 
clare that,— 

“All this beneficent prosperity reposes on the sacredness of con¬ 
tract and the stability of private property; the first the implement, 
and the last the reward, of success in the universal competition 

For this frank and candid utterance of a truth which forced itself 
upon his convictions, I forgive all his doubts as to the success of popu¬ 
lar government, and cancel the remembrance of his dismal forebod¬ 
ings. The Laws and Jurisprudence of England and America, 210-11. 

Dr. David Jayne Hill thus defines Representative Govern¬ 
ment and distinguishes American from others: 

We are sometimes told that the American government is only a 
projection, in a sense an extension, of the British government. It is 
not so. There were four principles, some of which were taken from 
the British system, which were combined to form our system. 

1. Representative government, a heritage from the English liberty, 
dating perhaps from the Norman Conquest, but which English prac¬ 
tice by electoral reforms in later years following American example 
was greatly to improve. 


Government, American, As a Teacher 


87 


2. The division of powers; that is, a distribution of public powers 
established by law in such a manner as to prevent the absolute con¬ 
trol of government by any one of its agencies. 

3. The guarantee of personal immunities—the rights of free 
speech; freedom of the press; of peaceable assembly; of petition for 
redress of grievances; of bearing arms; of security of persons, houses, 
papers, and effects against unreasonable search; of trial by jury; of 
not being twice put in jeopardy of life and limb for the same offense; 
of refusing to bear witness against oneself; of not being deprived of 
life, liberty, or property without due process of law; and many other 
guarantees never before secured in any country by fundamental law. 

Now these are not borrowed from England. England had no such 
fundamental law. England had the Great Charter, but the Great 
Charter permitted any right or liberty to be taken away from the 
Englishman by the judgment of his peers; but the Constitution of the 
United States lays it down as a rock-bottom principle that these liber¬ 
ties and others may not be taken away from the American citizen by 
the judgment of his peers. They are his. They are his forever, and 
they cannot be taken away. 

4. Judicial protection of the constitutional guarantees—a unique 
provision never before provided for in any charter of human liberty— 
by -which the government, and even a majority of the people or their 
representatives, cannot legally render valid the invasion of these im¬ 
munities by any subsequent act of legislation. 

By this combination of guarantees and provision for their protec¬ 
tion, the Constitution of the United States gives to representative 
government a perfection that it had never before possessed, by placing 
upon the people’s representatives a body of legal restraints that forbid 
their disregard of these primary rights and liberties, to secure which 
our independence as a nation was declared, and to maintain which the 
Constitution was adopted. The Constitutional Review, Vol. I, 7. 


What the American Commonwealth Has Taught Europe 


The prophetic words of Alexander Hamilton have been ob¬ 
tained by the American Union, the United States. The world, 
including Europe, will acknowledge it when the present world 
war is ended . 1 In Number XI of the Federalist, Alexander 
Hamilton made this prophecy. He said: 

The world may politically, as well as geographically, be divided 
into four parts, each having a distinct set of interests. Unhappily for 
the other three, Europe, by her arms and by her negotiations, by force 
and by fraud, has, in different degrees, extended her dominion over 
them all. Africa, Asia, and America, have successfully felt her domi¬ 
nation. The superiority she has long maintained has tempted her to 
plume herself as the Mistress of the World, and to consider the rest of 


Ut was England then that “plumed 
herself the Mistress of the World 
to-dav it is Germany. The Hamilton 
prophecy is now fulfilled. We have 
twice taught England that America 
must be reckoned with before she can 
rule the world, and we are now teach¬ 


ing Germany the same lessons hereto¬ 
fore taught to England. While this 
note is being written the United States 
is not only “dictating the terms of 
connection between the old and new 
world,” but also the terms of peace 
and connection of all the world. 


88 


Government, Dual Form of 


mankind as created for her benefit. Men admired as profound phi' 
losophers have, in direct terms, attributed to her inhabitants a phys¬ 
ical superiority, and have gravely asserted that all animals, and with 
them the human species, degenerate in America—that even dogs 
cease to bark after having breathed awhile in our atmosphere. Facts 
have too long supported these arrogant pretensions of the Europeans. 
It belongs to us to vindicate the honor of the human race, and to teach 
that assuming brother, moderation. Union will enable us to do it. 
Disunion will add another victim to his triumphs. Let Americans 
disdain to be the instruments of European greatness! Let the thirteen 
States, bound together in a strict and indissoluble Union, concur in 
erecting one great American system, superior to the control of all 
transatlantic force or influence, and able to dictate the terms of the 
connection between the old and new world! 

Dual Form of United States Government 

Patterson in the Constitutional Convention said: 

“Notwithstanding my solicitude to establish a national government, 
I never will agree to abolish the state governments, or render them 
absolutely insignificant. They are as necessary as the general gov¬ 
ernment, and I shall be equally careful to preserve them. I am aware 
of the difficulty of drawing the line between the two, but hope it is 
not insurmountable. That the one government will be productive of 
disputes and jealousies against the other, I believe; but it will pro¬ 
duce mutual safety. The convention cannot make a faultless gov¬ 
ernment; but I will trust posterity to mend its defects.” Bancroft on 
the History of the Constitution of the United States, 2^3. 

Sherman replied: “The more permanency a government has, the 
worse, if it be a bad one. I shall be content with six years for the 
senate; but four will be quite sufficient.” 

“We are now to decide the fate of republican government,” said 
Hamilton; “if we do not give to that form due stability, it will be 
disgraced and lost among ourselves, disgraced and lost to mankind 
forever. I acknowledge I do not think favorably of republican gov¬ 
ernment, but I address my remarks to those who do, in order to pre¬ 
vail on them to tone their government as high as possible. I profess 
myself as zealous an advocate for liberty as any man whatever; and 
trust I shall be as willing a martyr to it, though I differ as to the 
form in which it is most eligible. Real liberty is neither found in 
despotism nor in the extremes of democracy, but in moderate gov¬ 
ernments. Those who mean to form a solid republic ought to proceed 
to the confines of another ^government. If we incline too much from 
democracy, we shall soon ‘shoot into a monarchy.” Bancroft on the 
History of the Constitution of the United States, 2Jfi. 

The distribution of powers between the general government and the 
states was the most delicate and most difficult task before the con¬ 
vention. Startled by the vagueness of language in the Virginia re¬ 
solve, Sherman on the seventeenth of July proposed the grant of 
powers “to make laws in all cases which may concern the common in¬ 
terests of the union, but not to interfere with the government of the 


Government, Dual and Federal 


89 


individual states in any matters of internal police which respect the 
government of such states only, and wherein the general welfare of 
the United States is not concerned.” Bancroft on the History of the 
Constitution of the United States, 270. 

Dual Meaning of “Government of United States” 

In dealing with foreign sovereignties, the term “United States” has 
a broader meaning than when used in the Constitution, and includes 
all territories subject to the jurisdiction of the Federal government, 
wherever located. In its treaties and convention with foreign nations, 
this government is a unit.i This is so not because the territories 
comprised a part of the government established by the people of the 
States in their Constitution, but because the Federal government is 
the only authorized organ of the territories, as well as the States, in 
their foreign relations. By Art. I, sec. 10, of the Constitution, “no 
state shall enter into any treaty, alliance or confederation, . . or 

enter into any agreement or compact with another state, or with a 
foreign power.” It would be absurd to hold that the territories, which 
are much less independent than the States, and are under the direct 
control and tutelage of the general government, possess a power in 
this particular which is thus expressly forbidden to the States. 

It may be added in this connection that, to put at rest all doubts 
regarding the applicability of the Constitution to the District of 
Columbia, Congress by the act of Feb. 21, 1871, specifically extended 
the Constitution and laws of the United States to this District. 182 
U. S., 263. 


Advantages of Federal Government 


The problem which all federalized nations have to solve is how to 
secure an efficient central government and preserve national unity, 
while allowing free scope for the diversities, and free play to the au¬ 
thorities, of the members of the federation. It is, to adopt that fa¬ 
vorite astronomical metaphor which no American panegyrist of the 
Constitution omits, to keep the centrifugal and centripetal forces in 
equilibrium, so that neither the planet States shall fly off into space, 
nor the sun of the Central government draw them into its consuming 
flames. The characteristic merit of the American Constitution lies 
in the method by which it has solved this problem. It has given the 
National government a direct authority over all citizens, irrespective 
of the State governments, and has therefore been able safely to leave 
wide powers in the hands of those governments. And by placing the 
Constitution above both the National and State governments, it has 
referred the arbitrament of disputes between them to an independent 


Hf the States were not parties to the 
Constitution, how did the Constitution 
of the United States lawfully and 
peaceably acquire the powers, then 
possessed by the States, and not by the 
people? Because they had theretofore 
granted these powers to the States. 
How can rights or powers be reserved 
by a written grant or charter, except 
it be reserved to the grantors? Other¬ 
wise, it would be a grant or a convey¬ 


ance and not a reservation to the 
States. Mr. Hamilton contended that 
the reservations were useless; but it 
was feared that unless the reservations 
were express, it might be contended 
that the powers passed. The reserva¬ 
tions were intended to prevent this 
possibility of construing it as a grant 
by the States of any power not ex¬ 
pressly mentioned as granted to the 
United States or denied to the States. 


90 


Government, Spirit of 


body, charged with the interpretation of the Constitution, a body 
which is to be deemed not so much a third authority in the govern¬ 
ment as the living voice of the Constitution, the unfolder of the mind 
of the people whose will stands expressed in that supreme instru¬ 
ment. Bryce's American Commonwealth, Vol. I, 3\8. 

Evils of Unlimited Power in Government 

Mr. Adams thus wrote Jefferson on this subject: 

The fundamental article of my political creed is, that despotism, 
or unlimited sovereignty, or absolute power, is the same in a ma¬ 
jority of a popular assembly, an aristocratical council, an oligarchical 
junto, and a single emperor; equally arbitrary, cruel, bloody, and in 
every respect diabolical. 

Accordingly, arbitrary power, wherever it has resided, has never 
failed to destroy all the records, memorials, and histories of former 
times which it did not like, and to corrupt and interpolate such as it 
was cunning enough to preserve or tolerate. We cannot therefore say 
with much confidence, what knowledge or what virtues may have pre¬ 
vailed in some former ages in some quarters of the world. lJf Jeffer¬ 
son's Writings, (Mem. ed.), pp. 359-360. 

Spirit of Governments 

Madison, the father of the Constitution, thus describes the 
principles: 

No government is perhaps reducible to a sole principle of opera¬ 
tion. Where the theory approaches nearest to this character, different 
and often heterogenous principles mingle their influence in the admin¬ 
istration. It is useful, nevertheless, to analyze the several kinds of 
government, and to characterize them by the spirit which predomi¬ 
nates in each. 

Montesquieu has resolved the great operative principles of govern¬ 
ment into fear, honor, and virtue, applying the first to pure despotisms, 
the second to regular monarchies, and the third to republics. The 
portion of truth blended with the ingenuity of this system sufficiently 
justifies the admiration bestowed on its author. Its accuracy, how¬ 
ever, can never be defended against the criticisms which it has en¬ 
countered. Montesquieu was in politics not a Newton or a Locke, who 
established immortal systems—the one in matter, the other in mind. % 
He was in his particular science what Bacon was in universal science. 
He lifted the veil from the venerable errors which enslaved opinion, 
and pointed the way to those luminous truths of which he had but 
a glimpse himself. 

May not governments be properly divided, according to their pre¬ 
dominant spirit and principles, into three species, of which the fol¬ 
lowing are examples: 

First. A government operating by a permanent military force, 
which at once maintains the government and is maintained by it; 
which is at once the cause of burden on the people, and of submission 
in the people to their burdens. Such have been the governments un- 


91 


Government , American , Form and Nature of 

der which human nature has groaned through every age. Such are 
the governments w r hich still oppress it in almost every country of 
Europe, the quarter of the globe which calls itself the pattern of 
civilization and the pride of humanity. 

Secondly. A government operating by corrupt influence, substi¬ 
tuting the motive of private interest in place of public duty, convert¬ 
ing its pecuniary dispensations into bounties to favorites or bribes to 
opponents, accommodating its measures to the avidity of a part of the 
nation instead of the benefit of the whole; in a word, enlisting an 
army of interested partisans, whose tongues, whose pens, whose in¬ 
trigues, and whose active combinations, by supplying the terror of 
the sword, may support a real domination of the few, under an ap¬ 
parent liberty of the many. Such a government, wherever to be found, 
is an impostor. It is happy for the New World that it is not on the 
west side of the Atlantic. It will be both happy and honorable for 
the United States if they never descend to mimic the costly pageantry 
of its form, nor betray themselves into the venal spirit of its admin¬ 
istration. 

Thirdly. A government deriving its energy from the will of the 
society, and operating, by the reason of its measures, on the under¬ 
standing and interest of the society. Such is the government for 
which philosophy has been searching and humanity been fighting 
from the most remote ages. Such are the republican governments 
which it is the glory of America to have invented, and her unrivaled 
happiness to possess. May her glory be completed by every improve¬ 
ment on the theory which experience may teach, and her happiness be 
perpetuated by a system of administration corresponding with the 
purity of the theory. 4 Writings of Madison , pp. 474-475. 

Form and Nature of the Government of the United States 

The government of the United States is a federal government. The 
United States is a republic, and so also is each of the states, the form 
of government being representative. Black, on Constitutional Law , 27. 

The father of the Constitution, in an essay on the subject, 
says: 

Power being found by universal experience liable to abuses, a dis¬ 
tribution of it into separate departments has become a first principle 
of free governments. By this contrivance, the portion entrusted to 
the same hands being less, there is less room to abuse what is granted; 
and the different hands being interested, each in maintaining its own, 
there is less opportunity to usurp what is not granted. Hence the 
merited praise of governments modeled on a partition of their powers 
into legislative, executive, and judiciary, and a separation of the leg¬ 
islative into different houses. 

The political system of the United States claims still higher 
praise. The power delegated by the people is first divided between 
the General Government and the State governments, each of which is 
then subdivided into legislative, executive, and judiciary departments. 
And as in a single government these departments are to be kept 
separate and safe by a defensive armour for each, so, it is to be hoped. 


92 Government, American, Form and Nature of 

do the two governments possess each the means of preventing or cor¬ 
recting unconstitutional encroachments of the other. Should this 
improvement in the theory of free government not be marred in the 
execution, it may prove the best legacy ever left by lawgivers to their 
country, and the best lesson ever given to the world by its benefactors. 
If a security against power lies in the division of it into parts mu¬ 
tually controlling each other, the security must increase with the in¬ 
crease of the parts into which the whole can be conveniently formed. 

It must not be denied that the task of forming and maintaining 
a division of power between different governments is greater than 
among different departments of the same government, because it may 
be more easy (though sufficiently difficult) to separate by proper defi¬ 
nitions the legislative, executive, and judiciary powers, which are 
more distinct in their nature, than to discriminate by precise enumera¬ 
tions, one class of legislative powers from another class* one class of 
executive from another class, one class of judiciary from another 
class, where, the power being of a more kindred nature, their bounda¬ 
ries are more obscure and run more into each other. 4 Writings of 
Madison, pp. 472-473. 

Mr. Davis says: 

The Government is the machinery established by the Constitution; 
it is the agency created by the States when they formed the Union. 
Our fathers, having fought the war of the Revolution, and achieved 
their independence—each State for itself, each State standing out an 
integral part, each State separately recognized by the parent Govern¬ 
ment of Great Britain—these States as independent sovereignties en¬ 
tered into confederate alliance. After having tried the Confederation 
and found it to be a failure, they, of their own accord came peacefully 
together, and in a brief period made a Constitution, which was re¬ 
ferred to each State and voluntarily ratified by each State that entered 
the Union; little time, little money and no blood being expended to 
form this Government, the machine for making the Union useful and 
beneficial. Blood, much and precious, was expended to vindicate and 
to establish community independence, and the great American idea 
that all governments rest on the consent of the governed, and that the 
people may at their will alter or abolish their government, however 
or by whomsoever instituted. Davis on The Rise and Fall of The 
Confederate Government, Vol. I, 65. 

The theory of our Constitution is one of peace, of equality of sover¬ 
eign States. It was made by States and made for States; and for 
.greater assurance they passed an amendment, doing that which was 
necessarily implied by the nature of the instrument, as it was a mere 
instrument of grants. But, in the abundance of caution, they de¬ 
clared that everything which had not been delegated was reserved to 
the States, or to the people—that is, to the State governments as in¬ 
stituted by the people of each State, or to the people in their sovereign 
capacity. Davis on The Rise and Fall of The Confederate Govern¬ 
ment, Vol. I, 67. 


Government, American , Form and Nature of 


93 


Judge Dillon says: 

Our government, state and national, embodies and rests upon the 
fundamental principle of the absolute and essential civil and political 
equality of all its citizens, whose collective will, expressed by majori¬ 
ties, is the rightful and only source of all political power. By this 
principle we must stand or fall. In adopting it, we reversed the doc¬ 
trines of the governments of continental Europe, which doctrines were 
"all popular and constitutional rights, all useful and necessary changes 
in legislation and administration, can only emanate from the free 
will and concession of the monarch or instituted government.” The 
Laws and Jurisprudence of England and America, 1^-5. 

"President Lincoln’s celebrated phrase in his Gettysburg oration, 
wherein he described ours as the “government of the people, by the 
people, for the people,” is not a mere flourish of rhetoric, but a defini¬ 
tion historically of the people, because it was ordained by their sov¬ 
ereignty; by the people, because it is carried on by the representatives 
and servants; for the people, because it is maintained and conducted 
solely for their benefit and behoof. Well might the martyr President 
utter the fervent and effectual prayer that it might not "perish from 
the earth.” 

Judge Dillon, in a lecture before the Yale law school, said: 

Our institutions failed of success! I deny it; a thousand times I 
-deny it! In the name of every man who, like myself, has come 
through the terrible ordeal of poverty and knows what it is,—in the 
name of the unnumbered thousands of generous youth who must yet 
walk barefoot upon the heated ploughshares of this ordeal, I deny it; 
for the genius of our institutions will attend them, unseen, through¬ 
out the fiery trial, and give them a safe deliverance. What, let me 
ask, is the cause of our unexampled growth, our matchless prosperity? 
Not alone, or chiefly, a favored climate, and a fertile soil, but the 
magnetic force and marvelous power of our free institutions, whose 
chief glory is that all men are equal before the law, whose priceless 
benefaction is that all men have equal opportunities. A teacher of 
law. who fails to inculcate a rational but hearty and sincere love of 
country fails in the discharge of a high and peremptory duty. The 
Laio and Jurisprudence of England and America, 150-1. 

Mr. Davis says: 

The social problem of maintaining the just relation between con¬ 
stitution, government, and people, has been found so difficult, that 
human history is a record of unsuccessful efforts to establish it. A 
government, to afford the needful protection and exercise proper care 
for the welfare of a people, must have homogeneity in its constituents. 
It is this necessity which has divided the human race into separate 
nations, and finally has defeated the grandest efforts which conquerors 
have made to give unlimited extent to their domain. When our fa¬ 
thers dissolved their connection with Great Britain, by declaring them¬ 
selves free and independent States, they constituted thirteen separate 
communities, and were careful to assert and preserve, each for itself, 
its sovereignty and jurisdiction. Davis on The Rise and Fall of the 
Confederate Government, Vol. I, 1. 


94 


Government, American, Form and Nature of 


Will any candid, well-informed man assert that, at any time be¬ 
tween 1776 and 1790, a proposition to surrender the sovereignty of 
the States and merge them in a central government would have had 
the least possible chance of adoption? Can any historical fact be more 
demonstrable than that the States did, both in the Confederation and 
in the Union, retain their sovereignty and independence as distinct 
communities, voluntarily consenting to federation, but never becom¬ 
ing the fractional parts of a nation? That such opinions should find 
adherents in our day, may be attributable to the natural law of ag¬ 
gregation; surely not to a conscientious regard for the terms of the 
compact for union by the States. Davis on the Rise and Fall of the 
Confederate Government, Vol. I, 2. 

Judge Dillon says: 

The distinguishing excellence of the English Constitution and sys¬ 
tem of laws is that under it law is everywhere throughout English 
institutions and polity predominant and supreme. This, bear in mind, 
is not only the spirit but the very essence of the Constitution and le¬ 
gal institutions of England. Professor Dicey’s excellent work, the 
“Law of the Constitution,” was written mainly to bring out, illustrate 
and enforce this truth. Parliament is the legal sovereign, but its 
will can only be expressed in an act of Parliament, and this at once 
subjects such enactment, both as to its construction and enforcement, 
to the judicial courts. The crown can act only through ministers, who 
are legally responsible for the act, and thus the crown indirectly, and 
the minister directly, are brought under the supremacy of the law. 
You may recall Bacon’s well-known remark in his Essays, that judges 
though they be “lions” yet should be “lions under the throne, being 
circumspect that they do not check or oppose any points of sover¬ 
eignty.” This was a covert plea for the prerogative, which Coke 
fought, which Parliament resisted, and which the Revolution of 1688 
finally overthrew, establishing the independence of the judges and 
the rule and supremacy of the law administered by the judges. The 
Laws and Jurisprudence of England and America, 224-5. 

“The Government of the United States,” said Chief Justice Mar¬ 
shall, in Marbury v. Madison, 1 Cranch, 137, “has been emphatically 
termed a government of laws and not of men.” “No man in this 
country,” said Mr. Justice Miller, delivering the judgment of the court 
in U. S. v. Lee, 106 U. S. Rep., 196, 220, “is so high that he is above 
the law. No officer of the law may set that law at defiance with im¬ 
punity. All the officers of the government, from the highest to the 
lowest, are creatures of the law, and are bound to obey it.” 

This great principle of personal liberty is strikingly illustrated in 
Kilboum v. Thompson, 103 U. S. Rep., 168, which went so far as to 
establish that a person may recover damages for an unlawful im¬ 
prisonment under an express order of the House of Representatives. 
The Laws and Jurisprudence of England and America, 227, footnote. 

Mr. Yenable thus speaks on the subject: 

The Supreme Court of the United States, in Texas v. White, 7 
Wall, 724-5, attempts to dispose of the question by what may be called 
a short method. It says: “By these (the Articles of Confederation) 


Government, American , Form and Nature of 95 

the Union was solemnly declared to ‘be perpetual.’ And when these 
articles were found to be inadequate to the exigencies of the coun¬ 
try, the constitution was ordained ‘to form a more perfect union.’ It 
is difficult to convey the idea of indissoluble unity more clearly by 
these words. What can be indissoluble, if the perpetual union, made 
more perfect, is not?” Richard M. Venable, in Reports of American 
Bar Association, Vol. 8, 247. 

While in the main the North maintained the national theory, it 
was clearly to its interest to do so. Most of the adherents of extreme 
states-rights view lived in the South, and their sentiments were dic¬ 
tated by their interests. In morals, if not constitutionally, the posi¬ 
tion of South Carolina was better than that of Pennsylvania on the 
tariff question. She wanted the national government to let her alone; 
while Pennsylvania wanted to use the Union for her own benefit. We 
can look with more tolerance on South Carolina when we bear in 
mind that the people who were lecturing her for her nullification 
tendencies were holding on with stolid selfishness to the fleshpot of 
protection. Much too has been said—and truthfully said—about the 
hectoring domination of the South in national politics down to the 
war; but the North should feel consoled by ithe reflection that during 
all this time she was getting out of the Union whatever of money 
value there was in it. Indications were not wanting, also, at the 
times of the Embargo Act, the War of 1812, and the Mexican War, 
that dissatisfaction with national measures could breed a states-right 
party even in New England. Richard M. Venable, in Reports of Ameri¬ 
can Bar Association, Vol. 8, 248. 

The literature of the era of the formation and adoption of the 
constitution is pervaded with certain theories of government; and, if 
time permitted, it would be an interesting inquiry to examine how far 
these theories influenced the partition of powers made by the con¬ 
stitution, and how far they have been sustained by its subsequent 
history. 

These theories were, to name them briefly, the theories of local 
self-government, of checks and balances, and of an equilibrated ad¬ 
justment of the states and national government. Richard M. Ven¬ 
able, Reports of American Bar Association, Vol. 8, 251. 

If we were now to state the theory of local self-government, we 
would, probably, say that a modern nation is an organism, vital in 
all of its parts. There is a solidarity of national life; and the prog¬ 
ress and efficiency of a country, and its rank as a nation, are to be 
determined by the progress and efficiency of all its parts. To deprive 
any part of the organism of its self-acting capacity and energies is 
to devitalize a portion of the organism; and the dead part lowers the 
efficiency of the whole. 

We have already seen that the partition made by the constitution 
was determined by the antecedent of the country, and was not a de¬ 
liberate work based on any theory. The theory of local self-govern¬ 
ment, held as a tradition from our English ancestors, was accepted in 
its fullness by the colonists. But the partition between state and na¬ 
tional powers was not made on the line dictated by this theory. Rich¬ 
ard M. Venable, in Reports of American Bar Association, Vol. 8, 252. 


96 Government, American, Form and Nature of 

Mr. Calhoun thus describes the Government of the United 
States: 

The two governments, General and State, stand to each other, in 
the first place, in the relation of parts to the-whole; not, indeed, in 
reference to their organization or functions,—for in this respect both 
are perfect,—but in reference to their powers. As they divide be¬ 
tween them the delegated powers appertaining to governments,—and 
as, of course, each is divested of what the other possesses, it neces¬ 
sarily requires the two united to constitute one entire government. 
That they are both paramount and supreme within the sphere of their 
respective powers,—that they stand, within these limits, as equals,— 
and sustain the relation of co-ordinate governments, has already been 
fully established. As co-ordinates, they sustain to each other the same 
relation which subsists between the different departments of the gov¬ 
ernment—the executive, the legislative, and the judicial,—and for 
the same reason. These are co-ordinate; because each, in the sphere 
of its powers, is equal to, and independent of the others; and be¬ 
cause the three united make the government. The only difference is 
that, in the illustration, each department, by itself, is not a govern¬ 
ment,—since it takes the whole in connection to form one; while the 
governments of the several States respectively, and that of the United 
States, although perfect governments in themselves, and in their 
respective spheres, require to be united in order to constitute one en¬ 
tire government. They, in this respect, stand as principal and sup¬ 
plemental;—while the co-departments of each stand in the relation of 
parts to the whole. 1 Calhoun's Works, pp. 197-8. 

To the rest of the world, the States composing this Union are now, 
and ever have been known in no other than their united, confederated 
character. Broad,—to the rest of the world,—they are but one. It is 
only at home, in their interior relations, that they are many; and it 
is to this twofold aspect that their motto, “E plurilms unum ,” ap¬ 
propriately and emphatically applies. So imperious was the necessity 
of union, and a common government to take charge of their foreign 
relations, that it may be safely affirmed, not only that it led to their 
formation, but that, without it, the States never would have been 
united. The same necessity still continues to be one of the strongest 
bonds of their union. But, strong as was, and still is, the inducement 
to union, in order to preserve their mutual peace and safety within , 
it was not, of itself, sufficiently strong to unite the parts composing 
this vast federal fabric; nor, probably, is it, of itself, sufficiently strong 
to hold them together. 1 Calhoun's Works, p. 201. 

Mr. Bryce thus speaks on this subject: 

The administrative, legislative, and judicial functions for which 
the Federal Constitution provides are those relating to matters which 
must be deemed common to the whole nation, either because all the 
parts of the nation are alike interested in them, or because it is only 
by the nation that they can be satisfactorily undertaken. The chief 
of these common or national matters are— 


Government, American, Form and Nature of 


97 


War and peace: treaties and foreign relations generally. 

Army and navy. 

Federal courts of justice. 

Commerce, foreign and domestic. 

Currency. 

Copyright and patents. 

The post-office and post roads. 

Taxation for the foregoing purposes, and for the general support 
of the Government. 

The protection of citizens against unjust or discriminating legis¬ 
lation by any State. 

This list includes the subjects upon which the national legislature 
has the right to legislate, the national executive to enforce the Fed¬ 
eral laws, and general to act in defense of national interests, the na¬ 
tional judiciary to adjudicate. All other legislation and administra¬ 
tion is left to the several States, without power of interference by the 
Federal legislature or Federal executive. Bryce's American Common¬ 
wealth , Vol. 1 , 30. 

It has been truly said that nearly every provision of the Federal 
Constitution that has worked well is one borrowed from or suggested 
by some State constitution: nearly every provision that has worked 
badly is one which the Convention, for want of a precedent, was 
obliged to devise for itself. To insist on this is not to detract from 
the glory of that illustrious body, for if we are to credit them with 
less inventiveness than has sometimes been claimed for them, we must 
also credit them with a double portion of the wisdom which prefers 
experience to a prior theory, and the sagacity which selects the best 
materials from a mass placed before it, aptly combining them to form 
a new structure. Bryce's American Commonwealth, Vol. I, 32. 

The subjection of all the ordinary authorities and organs of gov¬ 
ernment to a supreme instrument expressing the will of the sovereign 
people, and capable of being altered by them only, has been usually 
deemed the most remarkable novelty of the American system. But it 
is merely an application to the wider sphere of the nation, of a plan 
approved by the experience of the several States. And the plan had, 
in these States, been the outcome rather of a slow course of historical 
development than of conscious determination taken at any point of 
their progress from petty settlements to powerful commonwealth. 
Bryce on the American Commonwealth, Vol. I, 34. 

Mr. Calhoun thus states the character and nature of our 
government: 

Ours is a system of governments, compounded of the separate gov¬ 
ernments of the several States composing the Union, and of one com¬ 
mon government of all its members, called the Government of the 
United States. The former preceded the latter, which was created by 
their agency. Each was framed by written constitutions; those of 
the several States by the people of each; acting separately, and in 
their sovereign character; and that of the United States, by the same 
acting in the same character,—but jointly instead of separately. All 
were formed on the same model. They all divide the powers of gov- 


98 


Government, American, Form and Nature of 


eminent into legislative, executive, and judicial; and are founded on 
the great principle of the responsibility of the rulers to the ruled. The 
entire powers of government are divided between the two; those of a 
more general character being specifically delegated to the United 
States; and all others not delegated, being reserved to the several 
States in their separate character. Each, within its appropriate 
sphere, possesses all the attributes, and performs all the functions of 
government. Neither is perfect without the other. The two com¬ 
bined, form one entire and perfect government. 1 Calhoun’s Works, 

pp. 11, 112. 

It is democratic, in contradistinction to aristocracy and monarchy. 
It excludes classes, orders, and all artificial distinctions. To guard 
against their introduction, the constitution prohibits the granting of 
any title of nobility by the United States or by any State. The whole 
system is, indeed, democratic throughout. It has for its fundamental 
principle, the great cardinal maxim, that the people are the source 
of all power; that the governments of the several States and of the 
United States were created by them, and for them; that the powers 
conferred on them are not surrendered, but delegated; and, as such, 
are held in trust, and not absolutely; and can be rightfully exercised 
only in furtherance of the objects for which they were delegated. 

It is federal as well as democratic. Federal, on the one hand, in 
contradistinction to national, and, on the other to a confederacy. 1 
Calhoun's Works, pp. 112, 113. 

But as conclusive as these reasons are to prove that the govern¬ 
ment of the United States is federal, in contradistinction to national, 
it would seem, that they have not been sufficient to prevent the op¬ 
posite opinion from being entertained. Indeed, this last seems to have 
become the prevailing one; if we may judge from the general use of 
the term “national,” and the almost entire disuse of that of “federal.” 
National is now commonly applied to “the general government of the 
Union,”—and “the federal government of these States,”—and all that 
appertains to them or to the Union. It seems to be forgotten that 
the term was repudiated by the convention, after full consideration; 
and that it was carefully excluded from the constitution, and the letter 
laying it before Congress. Even those who know all this,—and, of 
course, how falsely the term is applied,—have, for the most part, slided 
into its use without reflection. But there are not a few who so apply 
it, because they believe it to be a national government in fact; and 
among these are men of distinguished talents and standing, who have 
put forth all their powers of reason and eloquence, in support of the 
theory. 1 Calhoun’s Works, pp. 118-119. 

It is no longer open to question that by the Constitution a nation 
was brought into being, and that that instrument was not merely 
operative to establish a closer union or league of states. Whatever 
powers of government were granted to the Nation or reserved to the 
states (and for the description and limitation of those powers we 
must always accept the constitution as alone and absolutely con¬ 
trolling), there was created a nation to be known as the United 
States of America, and as such then assumed its place among the 
nations of the world. 


Government, American, Form and Nature of 99 

The first resolution passed by the convention that framed the Con¬ 
stitution, sitting as a committee of the whole, was: “Resolved, That 
it is the opinion of this committee that a national government ought 
to be established, consisting of a supreme legislative, judiciary, and 
executive.” 1 Elliot’s Delates, 151. 

In 4 Wheat, 316, 404, Judge Marshall said: 

The government of the Union is emphatically and truly a govern¬ 
ment of the people. In form and in substance it emanates from them. 
Its powers are granted by them, and are to be exercised directly on 
them, and for their benefit. (See also 1 Wheat, 304.) 

In 19 How. 393, Judge Taney observed: 

The new government was not a mere change in a dynasty, or in a 
form of government, leaving the nation or sovereignty the same, and 
clothed with all the rights, and bound by all the obligations of the 
preceding one. But, when the present United States came into exist¬ 
ence under the new government, it was a new political body, a new 
nation, then for the first time taking its place in the family of na¬ 
tions. 

In Miller on the Constitution, 83, referring to the adoption 
of the Constitution, that learned jurist said: “It was then 
that a nation was born. ’ ’ 

In the Constitution are provisions in separate articles for the 
three great departments of government—legislative, executive and 
judicial. But there is this significant difference in the grants of 
powers to these departments: The first article, treating of legisla¬ 
tive powers, does not make a general grant of legislative power. It 
reads: “Art. 1, sec. 1. All legislative powers herein granted shall 
be vested in a congress,” etc.; and in Art. 8, mentions and defines the 
legislative powers that are granted. By reason of the fact that there 
is no general grant of legislative power it has become an accepted 
constitutional rule that this is a government of enumerated powers. 
206 U. S. 80-81. 

Mr. Jefferson’s views of parties in government are as fol¬ 
lows : 

In every free and deliberating society, there must from the nature 
of man, be opposite parties, and violent dissensions and discords; and 
one of these, for the most part, must prevail over the other for a 
longer or shorter time. Perhaps this party division is necessary to 
induce each to watch and relate to the people the proceedings of the 
other. But if on a temporary superiority of the one party, the other 
is to resort to a scission of the Union, no federal government can ever 
exist. 10 Jefferson’s Writings, (Mem. ed.), p. 1^5. 

Better keep together as we are, haul off from Europe as soon as 
we can, and from all attachments to any portions of it; and if they 
show their power just sufficiently to hoop us together, it will be the 
happiest situation in which we can exist. If the game runs some- 


100 


Government, American, Form and Nature of 


times against us at home, we must have patience till luck turns, and 
then we shall have an opportunity of winning back the principles we 
have lost. For this is a game where principles are the stake. 10 
Jefferson's Writings, (Mem. ed.), p. 47. 

Chancellor Kent thus defines the Government: 

The Government of the United States was erected by the free voice 
and joint will of the people of America for their common defence and 
general welfare. Its powers apply to those great interests which re¬ 
late to this country in its national capacity, and which depend for 
their stability and protection on the consolidation of the Union. It is 
clothed with the principal attributes of political sovereignty, and it 
is justly deemed the guardian of our best rights, the source of our 
highest civil and political duties, and the sure means of national great¬ 
ness. 1 Kent's Commentaries, 201; Miller's Const, pp. 115, 116. 

In 1820, Mr. Madison, in writing to General LaPayette, as 
to our government, and others, says: 

We feel here all the pleasure you express at the progress of ref¬ 
ormation on your Continent. DESPOTISM CAN ONLY EXIST IN 
DARKNESS, AND THERE ARE TOO MANY LIGHTS NOW IN THE 
POLITICAL FIRMAMENT TO PERMIT IT TO REIGN ANYWHERE 
AS IT HAS HERETOFORE DONE ALMOST EVERYWHERE. 3 Writ¬ 
ings of Madison, p. 189. 

Here, we are, on the whole, doing well, and giving an example of a 
free system, which, I trust, will be more of a pilot to a good port than 
a beacon-warning from a bad one. We have, it is true, occasional 
fevers, but they are of the transient kind, flying off through the sur¬ 
face, without preying on the vitals. A Government like ours has so 
many safety-valves, giving vent to overheated passions, that it car¬ 
ries within itself a relief against the infirmities from which the best 
of human institutions cannot be exempt. The subject which ruffles 
the surface of public affairs most, at present, is furnished by the 
transmission of the “Territory” of Missouri from a state of nonage to 
a maturity for self-government, and for a membership in the Union. 
Among the questions involved in it, the one most immediately inter¬ 
esting to humanity is the question whether a toleration or prohibition 
of slavery westward of the Mississippi would most extend its evils. 
3 Writings of Madison, p. 190. 

Judge Miller said our government is not a democracy. 

It has been common to designate our form of government as a 
democracy, bilt in the true sense in which-that" term is properly used, 
as defining a government in which all its acts are performed by the 
people, it is about as far from it as any other of which we are aware. 
As has already been said, a pure democracy is almost unknown, from 
the difficulty of having all the people participate in the functions of 
government which include not only the processes of making the laws, 
but also the administration of them. Such was that of Athens, the 


Government, American, Form and Nature of 101 

only highly civilized form of democracy that ever existed, where peo¬ 
ple from the streets, who could gather in the public places of the city, 
met and decided lawsuits, questions of the right of property, of the 
life or death of individuals, of the election, punishment, or censure 
of their officers, of the proprietorship of land, or of making war or 
preserving peace. Miller's Const, pp. 8J h 85. 

In the Athenian republic, the most democratic of the Greek states, 
when the population and suffrage were most extended, 317 B. C., 
but 21,000 were entitled to vote out of more than 500,000 * * * 

Real democracy was first put in practice by the New England Colonies, 
and to this day the most perfect examples are the New England 
towns, where the whole adult male population assemble together and 
decide by their votes their own public affairs. American Encyclopae¬ 
dia, tit. Democracy; Miller's Const. Note, p. 85. 

Mr. Madison says our Government is a compound one: 

It has been too much the case in expounding the Constitution of 
the United States, that its meaning has been sought, not in its pe¬ 
culiar and unprecedented modifications of power, but by viewing it, 
some through the medium of a simple Government, others through 
that of a mere league of Governments. It is neither the one nor the 
other, but essentially different from both. It must, consequently, be 
its own interpreter. No other Government can furnish a key to its 
true character. Other Governments present an individual and indi¬ 
visible sovereignty. The Constitution of the United States divides 
the sovereignty; the portions surrendered by the States composing the 
Federal sovereignty over specified subjects; the portions retained 
forming the sovereignty of each over the residuary subjects within 
its sphere. If sovereignty cannot be thus divided, the political sys¬ 
tem of the United States is a chimera, mocking the vain pretensions 
of human wisdom. If it can be so divided, the system ought to have 
a fair opportunity of fulfilling the wishes and expectations which 
cling to the experiment. 

Nothing can be more clear than that the Constitution of the 
United States has created a Government, in as strict a sense of the 
term as the governments of the States created by their respective 
constitutions. The Federal Government has, like the State govern¬ 
ments, its Legislative, its Executive, and its Judicial departments. 
It has, like them, acknowledged cases in which the powers of these 
departments are to operate; and the operation is to be directly on 
persons and things in the one Government as in the others. If in 
some cases the jurisdiction is concurrent as it is in others exclusive, 
this is one of the features constituting the peculiarity of the system. 

In forming this compound scheme of Government, it was impossi¬ 
ble to lose sight of the question, What was to be done in the event 
of controversies, which could not fail to occur, concerning the parti¬ 
tion line between the powers belonging to the Federal and to the 
State governments? That some provision ought to be made, was as 
obvious and as essential as the task itself was difficult and delicate. 
4 Writings of Madison, pp. 61-62. 


102 Government, American, Form and Nature of 

The Supreme Court thus describes the character of our gov¬ 
ernment : 

For local interests, the several States of the Union exist, but for 
natural purposes, embracing our relations with foreign nations, we 
are but one people, one nation, one power. 

To preserve its independence, and to give security against foreign 
aggression, and encroachment, is the highest duty of every nation, 
and to attain these ends nearly all other considerations are to be sub¬ 
ordinated. It matters not in what form such aggression and encroach¬ 
ment come, whether from the foreign nation acting in its national 
character or from vast hordes of its people crowding in upon us. The 
government, possessing the powers which are to be exercised for pro¬ 
tection and security, is clothed with authority to determine the oc¬ 
casion on which the powers shall be called forth; and its determina¬ 
tion, so far as the subjects affected are concerned, are necessarily 
conclusive upon all its departments and officers. If, therefore, the 
government of the United States, through its legislative department, 
considers the presence of foreigners of a different race in this coun¬ 
try, who will not assimilate with us, to be dangerous to its peace and 
security, their exclusion is not to be stayed because at the same time 
there are no actual hostilities with the nation of which the foreigners 
are subjects. The existence of war would render the necessity of the 
proceeding only more obvious and pressing. The same necessity, in 
a less pressing degree, may arise when war does not exist, and the 
same authority which adjudges the necessity in one case must also 
determine it in the other. In both cases its determination is con¬ 
clusive upon the judiciary. If the government of the country of which 
the foreigners excluded are subjects is dissatisfied with this action it 
can make complaint to the executive head of our government, or re¬ 
sort to any measure which, in its judgment, its interests or dignity 
may demand; and there lies its only remedy. ISO U. 8., 606. 

Judge Bradley in 12 Wall. 457, 555, observes that “the United 
States is not only a government, but it is a national government, and 
the only government in this country that has the character of national¬ 
ity. It is invested with power over all the foreign relations of the 
country, war, peace, and negotiations and intercourse with other na¬ 
tions; all of which are forbidden to the State governments. It has 
jurisdiction over all these general subjects of legislation and sover¬ 
eignty which affect the interests of the whole people equally and alike, 
and which require uniformity of regulations and laws, such as the 
coinage, weights and measures, bankruptcies, the postal system, pat¬ 
ent and copyright laws, the public lands and interstate commerce, all 
of which subjects are expressly or impliedly prohibited to the State 
governments. It had to suppress insurrections, as well as to repel in¬ 
vasions, and to organize, arm, discipline and call into service the 
militia of the whole country. The President is charged with the duty 
and invested with the power to take care that the laws be faithfully 
executed. The judiciary has jurisdiction to decide controversies be¬ 
tween the States, and between their respective citizens, as well as 


Government, American, Form and Nature of 103 

questions of national concerns; and the government is clothed with 
power to guarantee to every State a republican form of government, 
and to protect each of them against invasion and domestic violence.” 
130 U. S„ 605. 

Mr. Madison thus speaks of the Vital Characteristics of the 
political system: 

The two vital characteristics of the political system of the United 
States are, first, that the Government holds its powers by a charter 
granted to it by the people; second, that the powers of Government 
are formed into two grand divisions—one vested in a Government 
over the whole community, the other in a number of independent 
Governments over its component parts. Hitherto charters have been 
written grants of privileges by Governments to the people. Here they 
are written grants of power by the people to their Governments. 

Hitherto, again, all the powers of Government have been, in effect, 
consolidated into one Government, tending to faction and a foreign 
yoke among a people within narrow limits, and to arbitrary rule 
among a people spread over an extensive region. Here the established 
system aspires to such a division and organization of power as will 
provide at once for its harmonious exercise on the true principles of 
liberty over the parts and over the whole, notwithstanding the great 
extent of the whole; the system forming an innovation and an epoch 
in the science of Government not less honorable to the people to 
whom it owed its birth, than auspicious to the political welfare of all 
others who may imitate or adopt it. 

As the most arduous and delicate task in this great work lay in 
the untried demarkation of the line which divides the general and 
the particular Governments by an enumeration and definition of the 
powers of the former, more especially the legislative powers; and as 
the success of this new scheme of policy essentially depends on the 
faithful observance of this partition of powers, the friends of the 
scheme, or rather the friends of liberty and of man, cannot be too 
often earnestly exhorted to be watchful in marking and controlling 
encroachments by either of the Governments on the domain of the 
other. Ji Writings of Madison, pp. 138-99. 

Mr Madison undoubtedly had the clearest insight into the 
nature and structure of our government, because its mechan¬ 
ism was more the work of his mind and hand than that of any 
other man. 

He has thus stated the rules: 

As there are legal rules for interpreting laws, there must be anal¬ 
ogous rules for interpreting constitutions; and among the obvious 
and just guides applicable to the Constitution of the United States 
may be mentioned— 

1. The evils and defects for curing which the Constitution was 
called for and introduced. 

2. The comments prevailing at the time it was adopted. 


104 Government , American , Form and Nature of 

3. The early, deliberate, and continued practice under the Con¬ 
stitution, as preferable to constructions adapted on the spur of oc¬ 
casions, and subject to the vicissitudes of party or personal ascenden¬ 
cies. 

On recurring to the original of the Constitution and examining the 
structure of the Government, we perceive tha.t it is neither a Federal 
Government, created by the State Governments, like the revolutionary 
Congress, nor a consolidated Government (as that term is now ap¬ 
plied,) created by the people of the United States as one community, 
and, as such, acting by a numerical majority of the whole. 

me tacts of me case wmcn must decide its true character, a char¬ 
acter witnout a piototype, are, that the Constitution was created by 
me people as composing distinct mates, and acting by a majority in 
each; that, being derived Horn the same source as the constitutions 
of the States, it has within each State the same authority as the con¬ 
stitution of the state, and is as much a constitution, in the strict 
sense oi the term, as the constitution of the State; that, being a com¬ 
pact among me states in their highest sovereign capacity, and con¬ 
stituting the peopie thereof one people for certain purposes, it is not 
revocable or alterable at the wiJl of the States individually, as the 
constitution of a State is revocable and alterable at its individual 
will: 

That the sovereign or supreme powers of government are divided 
into the separate depositories of the Government of the United States 
and the governments of the individual States: 

That the Government of the United States is a government, in as 
strict a sense of the term, as the governments of the States; being, 
line them, organized into .Legislative, .executive, and Judiciary de¬ 
partments, operating like them, directly oil persons and things, and 
having, like them, the command of a physical force for executing the 
powers committed to it: 

That the supreme powers of government being divided between 
different governments, and conti oversies as to the landmarks of juris¬ 
diction being unavoidable, provision for a peaceable and authoritative 
decision of them was obviously essential: 

'That, to leave this decision to the States, numerous as they were, 
and with a prospective increase, would evidently result in conflicting 
decisions subversive of the common Government and of the Union 
itself. 

That, according to the actual provision against such calamities, the 
Constitution and laws of the United States are declared to be para¬ 
mount to those of the individual States, and an appellate supremacy 
is vested in the judicial power of the United States: 

That, as safeguards against usurpations and abuses of power by 
the Government of the United States, the members of its Legislative 
and the head of its Executive department are eligible by, and responsi¬ 
ble to, the people of the States or the Legislatures of the States; and 
as well the Judicial as the Executive functionaries including the 
head, are impeachable by the Representatives of the people in one 
branch of the Legislature of the United States, and triable by the 
Representatives of the States in the other branch: 


Government, Attempt to Change Form of 


105 


States can, through forms of the constitutional elective provisions, 
control the General Government. This has no agency in electing 
State governments, and can only control them through the func¬ 
tionaries, particularly the Judiciary, of the General Government: 

That in case of an experienced inadequacy of these provisions, an 
ulterior resort is provided in amendments attainable by an interven¬ 
tion of the States, which may better adapt the Constitution for the 
purposes of its creation. 

Should all these provisions fail, and a degree of oppression ensue, 
rendering resistance and revolution a lesser evil than a longer passive 
obedience, there can remain but the ultima ratio, applicable to extreme 
cases, whether between nations or the component parts of them. 4 
Writings of Madison, pp. 74, 75, 76. 

Attempt to Change Form of Government. 

Mr. Jefferson, while Secretary of State, during Gen. Wash¬ 
ington’s first term, thought he discovered a plot on the 
part of some men to change the form of government to that 
of a Monarchy, and to block this attempt he insisted on Gen¬ 
eral Washington offering for President a second time which 
was contrary to the views of both Washington and Jefferson. 
Of this plot, he wrote the President as follows: 

The ultimate object of all this is to prepare the way for a change 
from the present republican form of government to that of a mon¬ 
archy, of which the English Constitution is to be the model: that 
this was contemplated by the convention is no secret, because its 
partisans have made more of it. To effect it then was impracticable, 
but they are still eager after their object, and are predisposing every¬ 
thing for its ultimate attainment. So many of them have got into 
the Legislature, that, aided by the corrupt squadron of paper dealers, 
who are at their devotion, they make a majority in both houses. The 
republican party, who wish to preserve the government in its present 
form, are fewer in number; they are fewer even when joined by the 
two, three, or half dozen anti-federalists, who, though they dare not 
avow it, are still opposed to any General Government; but, being less 
so to a republican than a monarchical one, they naturally join those 
whom they think pursuing the lesser evil. 

Of all the mischiefs objected to the system of measures before 
mentioned, none is so afflicting and fatal to every honest hope, as the 
corruption of the Legislature. 

And this is the event at which I tremble, and to prevent which I 
consider your continuing at the head of affairs as of the last impor¬ 
tance. The confidence of the whole Union is centered in you. Your 
being at the helm will be more than an answer to every argument 
which can be used to alarm and lead the people in any quarter, into 
violence and secession. North and South will hang together if they 
have you to hang on; and if the first correction of a numerous repre¬ 
sentation should fail in its effect, your presence will give time for try¬ 
ing others, not inconsistent with the union and peace of the States. 
8 Jefferson's Writings, (mem. ed.), p. 847. 


106 


Government, Attempt to Change Form of 


A few weeks later lie wrote Gen. LaFayette as follows: „ 

Behold you, then, my dear friend, at the head of a great army es¬ 
tablishing the liberties of your country against a foreign enemy. May 
heaven favor your cause, and make you the channel through which it 
may pour its favors. While you are estimating the monster Aristoc¬ 
racy, and pulling out the teeth and fangs of its associate, Monarchy, 
a contrary tendency is discovered in some here. A sect has shown 
itself among us, who declare they espoused our new Constitution not 
as a good and sufficient thing in itself, but only as a step to an Eng¬ 
lish constitution, the only thing good and sufficient in itself, in their 
eye. It is hqppy for us that these are preachers without followers, 
and that our people are firm and constant in their republican purity. 
You will wonder to be told that it is from the eastward chiefly that 
these champions for a king, lords, and commons, come. They get 
some important associates from New York, and are puffed up by a 
tribe of Agioteurs which have been hatched in a bed of corruption 
made up after the model of their beloved England. Too many of 
these stock-jobbers and king-jobbers have come into our Legislature, 
or rather too many of our Legislature have become stock-jobbers and 
king-jobbers. However, the voice of the people is beginning to make 
itself heard, and will probably cleanse their seats at the ensuing elec¬ 
tion. 8 Jefferson's Writings, (mem. ed.), pp. 380-381 

That President Washington believed such a plot existed, is 
shown by the following letter to him by Jefferson, wherein 
the latter says: 

I now take the liberty of proceeding to that part of your letter 
wherein you notice the internal dissensions which have taken place 
within our government, and their disagreeable effect on its move¬ 
ments. That such dissensions have taken place is certain, and even 
among those who are nearest to you in the administration. To no 
one have they given deeper concern than myself; to no one equal 
mortification at being myself a part of them. 8 Jefferson’s Writings, 
(mem. ed.), p. 395. 

Mr. Jefferson undoubtedly believed that Hamilton desired 
to establish a monarchy, and not a republic. The folloAving 
excerpt from his letters to the President proves that this was 
his estimation of Hamilton: 

If the question be by whose fault is it that Colonel Hamilton and 
myself have not drawn together? the answer will depend on that to 
two other questions, whose principles of administration best justify, 
by their purity, conscientious adherence? and which of us has, not¬ 
withstanding, stepped farthest into the control of the department of 
the other? 

To this justification of opinions, expressed in the way of conversa¬ 
tion, against the views of Colonel Hamilton, I beg leave to add some 
notice of his late charges against me in Fenno’s Gazette; for neither 
the style, matter, nor venom of the pieces alluded to, can leave a doubt 
of their author. Spelling my name and character at full length to 


Government, Compact Between Parties Established 107 

the public, while he conceals his own under the signature of “An 
American,” he charges me, 1st. With having written letters from 
Europe to my friends to oppose the present Constitution, while de¬ 
pending. 2d. With a desire of not paying the public debt. 3d. With 
setting up a paper to descry and slander the government. 1st. The 
first charge is most false. No man in the United States, I suppose, 
approved of every title in the Constitution: no one, I believe, ap¬ 
proved more of it than I did, and more of it was certainly disap¬ 
proved by my accuser than by me, and of its parts most vitally re¬ 
publican. 8 Jefferson's Writings, (mem. ed.), pp. 399-400. 

You will there see that my objection to the Constitution was, that 
it wanted a bill of rights securing freedom of religion, freedom of the 
press, freedom from standing armies, trial by jury, and a constant 
habeas corpus act. Colonel Hamilton’s was, that it wanted a king and 
house of lords. The sense of America has approved my objection and 
added the bill of rights, not the king and lords. I also thought a 
longer term of service, insusceptible of renewal, would have made a 
President more independent. My country has thought otherwise, I 
have acquiesced implicitly. He wishes the General Government should 
have power to make laws binding the States in all cases whatsoever. 
Our country has thought otherwise: has he acquiesced? Notwith¬ 
standing my wish for a bill of rights, my letters strongly urged the 
adoption of the Constitution, by nine States at least, to secure the 
good it contained. I at first thought that the best method of secur¬ 
ing the bill of rights would be four States to hold off till such a bill 
should be agreed to. But the moment I saw Mr. Hancock’s proposi¬ 
tion to pass the Constitution as it stood, and give perpetual instruc¬ 
tions to the representatives of every State to insist on a bill of rights, 
I acknowledged the superiority of his plan, and advocated universal 
adoption. 8 Jefferson's Writings, (Mem. ed.), pp. 400-401. 

Compacts in the United States Government 

Mr. Madison’s ideas as to the Constitution’s being a com¬ 
pact follows: 

If the Supreme Court of the United States be found or deemed not 
sufficiently independent and impartial for the trust committed to it, 
a better tribunal is a desideratum. But, whatever this may be, it 
must necessarily derive its authority from the whole, not from the 
parts; from the States in some collective, not individual capacity. 
And as some such tribunal is a vital element, a sine qua non, in an 
efficient and permanent Government, the tribunal existing must be 
acquiesced in until a better or more satisfactory one can be sub¬ 
stituted. * * * 

Although the old idea of a compact between the Government and 
the people be justly exploded, the idea of a compact among those who 
are parties to a Government is a fundamental principle of free Gov¬ 
ernment. * * * 

The original compact is the one implied or presumed, but nowhere 
reduced to writing, by which a people agree to form one society. The 
next is a compact, here for the first time reduced to writing, by which 


108 


Government, Not a Compact or League 


the people in their social state agree to a Government over them. 
These two compacts may be considered as blended in the Constitution 
of the United States, which recognizes a union or society of States, 
and makes it the basis of the Government formed by the parties to it. 
If Writings of Madison, p. 63. 

Applying a like view of the subject to the case of the United 
States, it results, that the compact being among individuals as em¬ 
bodied into States, no State can at pleasure release itself therefrom 
and set up for itself. The compact can only be dissolved by the con¬ 
sent of the other parties, or by usurpations or abuses of power justly 
having that effect. It will hardly be contended that there is anything 
in the terms or nature of the compact authorizing a party to dissolve 
it at pleasure. If Writings of Madison, p. 6If. 

Even in the case of a mere league between nations absolutely in¬ 
dependent of each other, neither party has a right to dissolve it at 
pleasure, each having an equal right to expound its .obligations, and 
neither, consequently, a greater right to pronounce the compact void 
than the other has to insist on the mutual execution of it (See, in 
Mr. Jefferson’s volumes, his letters to J. M., Mr. Monroe, and Col. Car¬ 
rington.) If Writings of Madison, p. 65. 

The Government of the United States, like all governments free in 
their principles, rests on compact; a compact, not between the gov¬ 
ernment and the parties who formed and live under it, but among the 
parties themselves; and the strongest of governments are those in 
which the compacts were most fairly formed and the compact faith¬ 
fully executed. 

Now all must agree that the compact in the case of the United 
States was duly formed, and by a competent authority. It was formed 
in fact, by the people of the several States in their highest sovereign 
authority; an authority which could have made the compact a mere 
league, or a consolidation of all entirely into one community. Such 
was their authority if such had been their will. It was their will 
to prefer to either the constitutional Government now existing; and 
this being undeniably established by a competent and even the high¬ 
est human authority, it follows that the obligation to give it all the 
effect to which any government could be entitled, whatever the mode 
of its formation, is equally undeniable. If Writings of Madison, pp. 
Jf22-If23. 

Government of United States Not a Compact or League 

The system of government existing under the articles of confedera¬ 
tion was not a federal government, but a confederacy, in the sense of 
these terms as already explained. The articles constituted a league or 
treaty between the several States. They purportd to have been 
adopted by delegates from the individual States, and to establish a 
‘firm league of friendship’ between these States. It is not a league, 
treaty, convention, or compact between these States. It does not de¬ 
pend, either for its existence or its continuance, upon the consent of 
the States. The organic act, the constitution, was framed by the 
delegates representing the several States in convention. But it was 


Government, Confederacies 


109 


submitted to the consideration and acceptance of the people. The 
States did not act upon it. It was ratified and adopted by the people 
of the United States, who, acting for purposes of convenience within 
their representative States, appointed delegates for the sole purpose of 
deciding upon its adoption. Black i on Constitutional Laws, 30. 

Governments in Confederacies 


Montesquieu’s theories as to this form of government are 
thus stated: 


If the republic be small, it is destroyed by a foreign force; if it be 
large, it is ruined by an internal. imperfection. 

To this twofold inconvenieney democracies and aristocracies are 
equally liable, whether they be good or bad. The evil is in the very 
thing itself, and no form can redress it. 

It is therefore very probable that mankind would have been, at 
length, obliged to live constantly under the government of a single per- 
sdn, had they not contrived a kind of constitution that has all the 
internal advantages of a republican, together with the external force 
of a monarchial government. I mean, a confederate republic. 

This form of government is a convention, by which several petty 
states agree to become members of a larger one, which they intend 
to establish. It is a kind of assemblage of societies, that constitute 
a new one, capable of increasing by means of farther associations, till 
they arrive to such a degree of power, as to be able to provide for the 
security of the whole body. 

It was these associations that so long contributed to the prosperity 
of Greece. By these the Romans attacked the whole globe; and by 
these alone the whole globe withstood them. For, when Rome was 
arrived to her highest pitch of grandeur, it was the associations be¬ 
yond the Danube and the Rhine, associations formed by the terror of 
her arms, that enabled the barbarians to resist her. Montesquieu's 
Works, Book IX, Chapter I. 


The spirit of monarchy is war and enlargement of dominion; 
peace and moderation is the spirit of a republic. These two kinds of 
government cannot naturally subsist in a confederate republic. Thus 
we observe, in Roman history, that, when the Veientes had chosen a 
king, they were immediately abandoned by all the other petty re¬ 
publics of Tuscany. Greece was undone as soon as the kings of Mace- 
don obtained a seat among the Amphictyons. 

The confederate republic of Germany, composed of princes and 
free towns, subsists by means of a chief, who is, in some respects, the 
magistrate of the union, in others, the monarch. Montesquieu's 
Works, Book IX, Chapter II. 


*Mr. Black holds with Story and 
Marshall that the Constitution was 
adopted by the people of the United 
States, and not by the States as Cal¬ 
houn, Davis and others contend. The 
truth is, both contentions are correct 
in part and erroneous in part. Mr. 
Madison shows in the immediately pre¬ 
ceding quotations the needed qualifica¬ 
tions to every theory. The people of 
the thirteen States as one body, did not 


call the Constitutional Convention, did 
not draft or ratify or reject it, nor 
have they as one body ever proposed, or 
adopted amendments thereto. The 
States were necessary parties to the 
Constitution. The powers granted to 
the United States were then vested in 
the several States by grants of the 
people of the several States. No title 
could have passed unless the States 
were parties thereto. 


110 Government, Federal , and Confederacies 

Tendencies of Consolidated and Federal Governments 

Mr. Calhoun thus states the tendencies: 

If the federal government be left to decide, definitely and in the 
last resort, as to the extent of its powers, having no sufficient con¬ 
sideration, exterior to itself, it must necessarily move in the direction 
marked out by the inherent tendency belonging to its character and 
position. As a constitutional, popular government, its tendency will 
be, in the first place, to an absolute form, under the control of the 
numerical majority; and, finally, to the most simple of these forms, 
that of a single, irresponsible individual. As a federal government, 
extending over a vast territory, the tendency will be, in the first 
place, to the formation of sectional parties, and the concentration of 
all power in the stronger section; and, in the next, to conflict be¬ 
tween the sections, and disrupture of the whole system. One or the 
other must be the end, in the case supposed. The laws that would 
govern are fixed and certain. The only question would be, as to 
which end, and at what time. All the rest is as certain as the future, 
if not disturbed by causes exterior to the system. 1 Calhoun's Works, 
p. 308. 

Written and Unwritten Constitutions 

Hon. William R. Riddell, Justice of the Supreme Court of 
Canada, thus points out the distinction between the English 
and American constitutions: 

The word “constitution” carries with it a different connotation in 
English and in American usage, and we in Canada follow the English. 
In our usage, the Constitution is the totality of the principles more 
or less vaguely and generally stated upon which we think the people 
should be governed; in American usage, the Constitution is a written 
document containing many words and letters, which authoritatively 
and without appeal dictates what shall and what shall not be done. 
With us anything unconstitutional is wrong, no matter how legal it 
may be. With the American, anything which is unconstitutional is 
illegal, no matter how right it may be. With the American, anything 
which is unconstitutional rather suggests that it is legal but inad¬ 
visable. 1 Riddell, in the Constitutional Review, Vol. II, No. 2, p. 71. 

Difference Between a Federal Government and a Confederacy 

Mr. Calhoun thus states the difference: 

It, a Federal government, differs and agrees, but in opposite re¬ 
spects, with a national government, and a confederacy. It differs 
from the former, inasmuch as it has, for its basis, a confederacy, and 
not a nation; and agrees with it in being a government: while it 
agrees with the latter, to the extent of having a confederacy for its 
basis, and differs from it, inasmuch as the powers delegated to it are 
carried into execution by a government,—and not by a mere congress 
of delegates, as is the case in a confederacy. To be more full and 

lr The above tbe compiler believes to American Constitutions which is to be 
be the best and truest statement of a found in all the books, 
chief difference between English and 


Government, Monarchies and Republics Compared 111 

explicit,—a federal government, though based on a confederacy, is, 
to the extent of the powers delegated, as much a government as a 
national government itself. It possesses, to this extent, all the au¬ 
thorities possessed by the latter, and as fully and perfectly. The case 
is different with a confederacy; for, although it is sometimes called a 
government, —its Congress, or Council, or the body representing it, by 
whatever name it may be called, is much more nearly allied to an 
assembly of diplomatists convened to deliberate and determine how 
a league or treaty between their several sovereigns, for certain de¬ 
fined purposes, shall be carried into execution; leaving to the parties 
themselves, to furnish their quota of means, and to co-operate in car¬ 
rying out what may have been determined on. Such was the char¬ 
acter of the Congress of our confederacy; and such, substantially, was 
that of similar bodies in all confederated communities, which preceded 
our present government. Our system is the first that ever substituted 
a government in lieu of such bodies. This, in fact, constitutes its 
peculiar characteristic. It is new, peculiar, and unprecedented. 1 
Calhoun's Works, pp. 162-3. 

Monarchies and Republics Compared 

Mr. Madison is the author of the following observations: 

In Monarchies there is a twofold danger: 1st. That the eyes of a 
good prince cannot see all that he ought to know. 2nd. That the 
hands of a bad one will not be tied by the fear of combinations against 
him. Both these evils increase with the extent of domain; and prove, 
contrary to the received opinion, that monarchy is even more unfit for 
a great State than for a small one, notwithstanding the greater ten¬ 
dency in the former to that species of government. Aristocracies, on 
the other hand, are generally seen in small States; where a concen¬ 
tration of the public will is required by external danger, and that de¬ 
gree of concentration is found sufficient. The many, in such cases, 
cannot govern on account of emergencies which require the prompti¬ 
tude and precautions of a few, whilst the few themselves resist the 
usurpations of a single tyrant. In Thessaly, a country intersected by 
mountainous barriers into a number of small cantons, the govern¬ 
ments, according to Thucydides, were in most instances oligarchical. 
Switzerland furnishes similar examples. The smaller the State the 
less intolerable is this form of government, its rigors being tempered 
by the facility and the fear of combinations among the people. 

A Republic involves the idea of popular rights. A representative 
Republic chooses the wisdom of which hereditary aristocracy has the 
chance; whilst it excludes the oppression- of that form. And a con¬ 
federated Republic attains the force o£ monarchy, whilst it equally 
avoids the ignorance of a good prince and the oppression of a bad 
one. To secure all the advantages of such a system, every good citi¬ 
zen will be at once a sentinel over the rights of the people, over the 
authorities of the confederal government, and over both the rights 
and the authorities of the intermediate governments. 4 Writings of 
Madison, p. 1^61. 


112 


Government, Monarchies 


Monarchies and Their Governments 

In monarchies, the prince is the source of all power, political and 
civil. These fundamental laws necessarily suppose the intermediate 
channels through which the power flows; for, if there be only the 
momentary and capricious will of a single person to govern the 
state, nothing can be fixed, and of course there is no fundamental law. 

The most natural intermediate and subordinate power is that of 
the nobility. This, in some measure, seems to be essential to a 
monarchy, whose fundamental maxim is, No monarch, no nobility, no 
nobility, no monarch: but there may be a despotic prince. 

There are men who have endeavored, in some countries in Eu¬ 
rope, to suppress the jurisdiction of the nobility; not perceiving that 
they were driving at the very thing that was done by the parliament of 
England. Abolish the privileges of the lords, the clergy, and cities, 
in a monarchy, and you will soon have a popular state, or else a 
despotic government. Montesquieu's Works, Book II, Chapter IV. 

In monarchies, policy effects great things with so little virtue as 
possible. Thus, in the nicest machines, art has reduced the number 
of movements, springs, and wheels. 

The state subsists independently of the love of our country, of 
the thrift »oi true glory, of self-denial, of the sacrifice of our dearest 
interests, and of all those heroic virtues which we admire in the 
ancients, and to us are known only by story. Montesquieu's Works, 
Book III, Chapter V. 

Ambition in idleness, meanness mixed with pride, a desire of 
riches without industry, aversion to truth, flattery, perfidy, violation 
of engagements, contempt of civil duties, fear of prince’s virtue, hope 
for his weakness, but, above all, a perpetual ridicule cast upon virtue, 
are, I think, the characteristics by which most courtiers, in all ages 
and countries, have been constantly distinguished. Montesquieu's 
Works, Book III, Chapter VI. 

If monarchy wants one spring, it is provided with another. Hon¬ 
our, that is, the prejudice of every person and rank, supplieth the 
place of the political virtue of which I have been speaking, and is 
everywhere her representative: here it is capable of inspiring the 
most glorious actions, and, joined with the force of laws, may lead 
us to the end of government as well as virtue itself. 

Hence, in well-regulated monarchies, they are almost all good sub¬ 
jects, and very good men; for, to be a good man, a good intention is 
necessary, and we should love our country not so much on our own 
account as out of regard to the community. Montesquieu's Works, 
Book III, Chapter VI. 

Ambition is pernicious in a republic; but in a monarchy it has 
some good effects; it gives life to the government, and is attended 
with this advantage, that it is no way dangerous, because it may be 
continually checked. 

It is with this kind of government as with the system of the uni¬ 
verse, in which “there is a power that constantly repels all bodies 


Government — Monarchies , Kinds of 


113 


from the center, and a power of gravitation, but attracts them to it.” 1 
Honour sets all the parts of the body politic in motion, and, by its 
very action, connects them; thus each individual advances the public 
good, while he only thinks of promoting his own interest. 

True it is, that, philosophically speaking, it is false honor which 
moves all the parts of the government; but even this false honor is 
as useful to the public as true honor could possibly be to private 
people. 

Is it not a very great point, to oblige men to perform the most 
difficult actions, such as requires an extraordinary exertion of forti¬ 
tude and resolution, without any other recompence than that of glory 
and applause. Montesquieu's Works, Book III, Chapter IX. 

Aristotle is greatly puzzled in treating of monarchy. He makes 
five species; and he does not distinguish them by the form of con¬ 
stitution, but by things merely accidental, as the virtues and vices of 
the prince; or by things extrinsical, such as tyranny usurped or in¬ 
herited. 

Among the number of monarchies, he ranks the Persian empire and 
the kingdom of Sparta. But is it not evident that the one was a 
despotic state, and the other a republic? 

The ancients, who were strangers to the distributions of the three 
powers in the government of a single person, could never form a 
just idea of monarchy. Montesquieu's Works, Book XI, Chapter IX. 

An elective monarchy, like that of Rome, necessarily supposeth 
a powerful aristocratic body to support it; without which it changes 
immediately into tyranny or into popular state. But a popular state 
has no need of this distinction of families to maintain itself. To this 
it was owing that the patricians, who were a necessary part of the 
constitution under the regal government, became a superfluous branch 
under the consuls; the people could suppress them without hurting 
themselves, and change the constitution without corrupting it. Mon¬ 
tesquieu's Works, Book XI, Chapter XIII. 

There are four things that greatly prejudiced the liberty of Rome. 
The patricians had engrossed to themselves all public employments 
whatever; an exorbitant power was annexed to the consulate; the 
people were often insulted; and, in fine, they had scarce any influence 
at all left in the public suffrages. These four abuses were redressed 
by the people. 

1st. It was regulated, that the plebeians might aspire to some 
magistrates; and by degrees they were rendered capable of them all, 
except that of interrex. Montesquieu's Works, Book XI, Chapter XIV. 

Rome, whose passion was to command, whose ambition was to con¬ 
quer, whose commencement and progress were one continued usurpa¬ 
tion, had constantly affairs of the greatest weight upon her hands; 
her enemies were ever conspiring against her, or against her policies. 


1 The above, so far as the writer 
knows, is the first reference to the fact 
that the laws of government should 
conform to the laws of nature, a prin¬ 
ciple which was applied in the con¬ 
struction of the American Federal gov¬ 
ernment, and which Mr. Webster on 
many occasions so beautifully and so 
elegantly described; warning us of the 


danger of increasing the centrifugal 
force to such an extent as to cause the 
State to fly off into space, and collide 
with each other, or other governments, 
as well as the danger of increasing the 
centripetal force so as to cause the 
States to fly in at the radii and be 
overpowered by the great central gov¬ 
ernment. 


114 


Government, Despotic 


As she was obliged to behave on the one hand with heroic courage, 
it was requisite, of course, that the management of affairs should be 
committed to the senate. Thus the people disputed every branch of 
the legislative power with the senate, because they were jealous of 
their liberty; but they had not disputes about the executive, because 
they were animated with the love of glory. Montesquieu’s Works, 
Book XI, Chapter XVII. 

Great is the advantage which a monarchial government has over a 
republic. As the state is conducted by a single person, the executive 
power is thereby enabled to act with greater expedition; but, as this 
expedition may degenerate into rapidity, the laws should use some 
contrivance to slacken it; they ought not only to favour the nature 
of each constitution, but likewise to remedy the abuses that might 
result from this very nature. Montesquieu’s Works, Book V, Chap¬ 
ter X. 

Monarchy has a great advantage over a despotic government. As 
it naturally requires there should be several orders or ranks of sub¬ 
jects, the state is more permanent, the constitution more steady, and 
the person of him who governs more secure. 

Cicero is of the opinion, that the establishing of the tribunes pre¬ 
served the republic. “And, indeed, (says he) the violence of a head¬ 
less people is more terrible. A chief, or head, is sensible that the 
affair depends upon himself, and therefore he thinks; but the people, 
in their impetuosity, are ignorant of the danger into which they 
hurry themselves.” This reflection may be applied to a despotic gov¬ 
ernment, which is a people without tribunes, and to a monarchy, where 
the people have some sort of tribunes. Montesquieu's Works, Book 
V, Chapter XI. 

The prince cannot impart a greatness which he has not himself; 
with him there is no such thing as glory. 

It is in monarchies we behold the subjects encircling the throne, 
and cheered by the irradiancy of the sovereign; there it is that such 
person, filling, as it were, a larger space, is capable of exercising those 
virtues which adorn the soul, not with the independence, but with 
true dignity and greatness. Montesquieu's Works, Book V, Chapter 
XII. 

Despotic Governments 

As virtue is necessary in a republic, and, in a monarchy, honour, 
so fear is necessary in a despotic government: with regard to virtue, 
there is no occasion for it, and honour would be extremely dangerous. 

Here, the immense power of the prince is devolved entirely upon 
those whom he is pleased to intrust with the administration. Per¬ 
sons, capable of setting a value upon themselves, would be likely to 
create disturbances. Fear must, therefore, depress their spirits, and 
extinguish even the least sense of ambition. 

A moderate government may, whenever it pleases, and without 
the least danger, relax its springs: it supports itself by the laws and 
by its own internal strength. But, when a despotic prince creates one 
single moment to lift up his arm, when he cannot constantly demolish 


Government, Despotic 


115 


those whom he has intrusted with the first employments, all is over; 
for, as fear, the spring of this government, no longer subsists, the 
people are left without a protector. Montesquieu's Works, Book III, 
Chapter IX. 

One thing, however, may be sometimes opposed to the prince’s 
will, namely religion. They will abandon, nay, they will slay a par¬ 
ent, if the prince so commands, but he cannot oblige them to drink 
wine. The laws of religion are of superior nature, because they bind 
the sovereign as well as the subject. But, with respect to the law of 
nature, it is otherwise; the prince is no longer supposed to be a man. 
Montesquieu's Works, Book III, Chapter X. 

In despotic states, the nature of government requires the most 
passive obedience; and, when once the prince’s will is made known, 
it ought infallibly to produce its effect. Montesquieu's Works, Book 
III, Chapter X. 

As education in monarchies tends to raise and ennoble the mind, 
in despotic governments its only aim is to debase it. Here it must 
necessarily be servile: even in power such an education will be an 
advantage, because every tyrant is at the same time a slave. 

Excessive obedience supposes ignorance in the person that obeys. 
Montesquieu's Works, Book IV, Chapter III. 

Here therefore education is in some measure needless, to give 
something, one must take away everything; and begin with making a 
bad subject, in order to make a good slave. 

For why should education take pains in forming a good citizen, 
only to make him share in the public misery? If he loves his coun¬ 
try, he will strive to relax the springs of government; if he miscar¬ 
ries, he will be undone; if he succeeds, he must expose himself, the 
prince, and his country to ruin. Montesquieu's Works, Book IV, 
Chapter III. 

Despotic governments, where there are no fundamental laws, have 
no such kind of despositary. Hence it is that religion has generally 
so much influence in those countries, because it forms a kind of per¬ 
manent depositary; and, if this cannot be said of religion, it may of 
the customs that are respected instead of laws. Montesquieu's Works, 
Book II, Chapter V. 

From the nature of despotic power it follows, that the single per¬ 
son, invested with this power, commits the execution of it also to a 
single person. A man, whom his senses continually inform that he 
himself is everything, and his subject nothing, is naturally lazy, 
voluptuous, and ignorant. In consequence of this, he neglects the 
management of public affairs. But, were he to commit the adminis¬ 
tration to many, there would be continual disputes among them; 
each would form intrigues to be his first slave, and he should be 
obliged to take the reins into his own hands. Montesquieu's Works, 
Book II, Chapter V. 

In the despotic government, the power is communicated entirely to 
the person intrusted with it. The vizir himself is the despotic prince; 
and each particular officer is the vizir. In monarchies, the power is 


116 


Government, Aristocracies 


less immediately applied, being tempered by the monarch as he gives 
it. He makes such a distribution of his authority, as never to com¬ 
municate a part of it without reserving a greater share to himself. 

Hence, in monarchies, the governors of towns are not so dependent 
on the governors of the province as not to be still more so on the 
prince; and the private officers of military bodies are not so far sub¬ 
ject to their general as not to owe still a greater subjection to their 
sovereign. Montesquieu's Works, Book V, Chapter XVI. 

It is a received custom, in despotic countries, never to address any 
superior whomsoever, not excepting their kings, without making them 
a present. The Mogul never received the petitions of his subjects if 
they come with empty hands. These princes spoil their own favours. 
Montesquieu's Works, Book V, Chapter XVII. 

In a republic, presents are odious, because virtue stands in no need 
of them. In monarchies, honour is much stronger incentive than 
presents. But, in a despotic government, where there is neither hon¬ 
our nor virtue, people cannot be determined to act but through hope 
of the conveniences of life. 

It is in conformity to republican ideas, that Plato ordered those 
who received presents for doing their duty to be punished with death. 
“They must not take presents (says he) neither for good nor for 
evil actions.” 

A very bad law that was, among the Romans, which gave the mag¬ 
istrates leave to accept of small presents, provided they did not ex¬ 
ceed one hundred crowns the whole year. They who receive nothing, 
expect nothing; they, who receive a little, soon covet more; till at 
length their desires swell to an exorbitant height. Montesquieu's 
Works, Book V, Chapter XVII. 

It is a general rule, that great rewards, in monarchies and re¬ 
publics, are a sign of their decline, because they are a proof of their 
principles being corrupted, and that the idea of honour has no longer 
the same force in a monarchy, nor the title of citizen the same weight 
in a republic. Montesquieu's Works, Book V, Chapter XIX. 

Government of Aristocracies 

As virtue is necessary in a popular government, it is requisite, 
also, under an aristocracy. True, it is that, in the latter, it is not so 
absolutely requisite. 

The people, who, in respect to the nobility, are the same as the 
subjects with regard to a monarch, are restrained by their laws, they 
have, therefore, less occasion for virtue than the people in a democ¬ 
racy. But how are the nobility to be restrained? They, who are to 
execute the laws against their colleagues, will immediately perceive 
they are acting against themselves. Virtue is, therefore, necessary 
in this body, from the very nature of the constitution. 

An aristocratical government has an inherent vigour, unknown to 
democracy. The nobles form a body, who, by their prerogative, and 
their own particular interest, restrain the people; it is sufficient, that 
there are laws in being, to see them executed. Montesquieu's Works, 
Book III, Chapter IV. 


Government, by Bureaucracy 


117 


Moderation is, therefore, the very soul of this government; a 
moderation, I mean, founded on virtue, not that which proceeds from 
indolence and pusillanimity. Montesquieu's Works, Book III, Chap¬ 
ter IV. 

In an aristocracy the supreme power is lodged in the hands of a 
certain number of persons. They are invested both with the legis¬ 
lative and executive authority; and the rest of the people are, in re¬ 
spect to them, the same as subjects of a monarchy in regard to the 
sovereign. Montesquieu's Works, Book II, Chapter III. 

The best aristocracy is that which those who have no share in the 
legislature are so few and inconsiderable, that the governing party 
have no interest in oppressing them. Thus, when Antipater made 
a law at Athens, that whosoever was not worth two thousand drachms 
should have no power to vote, he formed, by this method, the best 
aristocracy possible; because this was so small a sum, as excluded 
very few, and not one of any rank or consideration in the city. 

Aristocratic families ought, therefore, as much as possible, to level 
themselves, in appearance, with the people. The more an aristocracy 
borders on democracy, the nearer it approaches to perfection; and, 
in proportion as it draws towards monarchy, the more it is imperfect. 

But the most imperfect of all is that in which the part of the peo¬ 
ple that obeys is in the state of civil servitude to those who command; 
as the aristocracy of Poland, where the peasants are slaved to the 
nobility. Montesquieu's Works, Book II, Chapter IV. 

In aristocratical governments, there are two principle sources of 
disorder: executive inequality between the governors and the gov¬ 
erned; and the same inequality between the different members of the 
body that governs. From these two inequalities hatreds and jeal¬ 
ousies arise, which the laws ought ever to prevent or repress. Mon¬ 
tesquieu's Works, Book V, Chapter III. 

There are two pernicious things in an aristocracy; excess either of 
poverty or of wealth in the nobility. To prevent their poverty, it is 
necessary above all things, to oblige them to pay their debts in time. 
To moderate the excess of wealth, prudent and gradual regulations 
should be made; but no confiscations, no agrarian laws, no expunging 
of debts; these are productive of infinite mischief. 

The laws ought to abolish the right of primogeniture among the 
nobles, to the end, that, by a continual division of the inheritances, 
their fortunes may be always upon a level. Montesquieu's Works, 
Book V, Chapter VIII. 

Government By Bureaucracy. 

Mr. Bagehot thus points out some of the defects of this kind 
of government: 

The defects of bureaucracy are, indeed, well known. It is a form 
of government which has been tried often enough in the world, and 
it is easy to show that, human nature being what it in the long run 
is, the defects of a bureaucracy must in the long run be. 

It is an inevitable defect that bureaucracies will care more for 
routine than for results; or, as Burke put it, “that they will think the 


118 


Government, Russian 


substance of business not to be much more important than the forms 
of it.” Their whole education and all the habit of their lives make 
them do so. They are brought young into the particular part of the 
public service to which they are attached; they are occupied for years 
in learning its forms—afterward, for years too, in applying these 
forms to trifling matters. They are, to use the phrase of an old writer, 
“but the tailors of business; they cut the clothes, but they do not find 
the body.” Bagehot on The English Constitution. 

Not only does a bureaucracy thus tend to under-government, in 
point of quality; it tends to over-government, in point of quantity. 
The trained official hates the rude, untrained public. He thinks that 
they are stupid, ignorant, reckless—that they cannot tell their own 
interest—that they should have the leave of the office before they do 
anything. Bagehot on The English Constitution. 

Voltaire says, somewhere, that, “the art of government is to make 
two-thirds of a nation pay all it possibly can pay for the benefit of 
the other third.” This is realized in Germany by the functionary sys¬ 
tem. The functionaries are not there for the benefit of the people, but 
the people for the benefit of the functionaries. Bagehot on The Eng - 
lish Constitution. 

Russian Government 

Russia was originally a despotic government. Until recent- ’ 
ly, when the government was destroyed by a revolution 
during the European war, it was an absolute hereditary mon¬ 
archy. The monarch was called the Czar. All governmental 
power of every description was vested in him. These powers, 
be they executive, legislative, or judicial, he executed through 
agencies appointed by himself. There was a Council of Em¬ 
pire, which was only a Consultation body, a part of the makers 
appointed by the Czar and part elective. There was another 
important deliberative body called the Duma, composed of 
four or five hundred members, elected for five years.. Its func¬ 
tions however were merely consulting, and not legislative, or 
executive, or judicial. Another great body was called the 
Senate, through which the Czar governed. It was divided 
into various departments, some of which acted as courts of 
cessation, other sections were charged with the execution and 
promulgation of the laws. There was also the Holy Synod 
charged with the supervision of the ecclesiastical offices. 

The Revolution during the World War resulted in the com¬ 
plete overthrow of the Czarenian government. A new form of 
government was set up called Bolshevism which is in truth not 
a government, but lack of government—a kind of anarchy or 
communism. 


Government, French 


119 


French Government 

The French government is a constitutional government, and 
called republican in form but is quite different from that of 
the United States. Its constitution consists of three written 
documents, adopted and promulgated by the National Assem¬ 
bly in 1875. These have been amended by statutes, called or¬ 
ganic laws. It is in fact and in truth not a constitution in the 
sense of the Constitution of the United States. It serves as a 
Constitution of government but not of liberty. Napoleon I 
well said that “the French people love equality but care noth¬ 
ing for liberty.” The government seems not to contemplate 
the liberty of the people, but only the equality of the people 
and the rights and powers of the government. It has a presi¬ 
dent wTio is elected but not by the people but by a body com¬ 
posed of members of both Chambers of Parliament. The term 
is seven years and is re-eligible, he cannot be of a family which 
has theretofore reigned in France. The president must act 
however through ministers. Every official act of the presi¬ 
dent must be counter-signed by a minister. 

In theory the president appoints the ministers who hold of¬ 
fice at his pleasure. In fact however they are appointed by 
the leader of the majority party of Deputies, and they resign 
when defeated. They are usually selected from the members 
of Parliament and if not are entitled to seats therein and must 
be heard if they desire to speak. 

The number is fixed by the President and usually at about 
a dozen. Few have held office longer than three years. France 
may be said to be a parliamentary republic. The parliament 
consists of two houses, a Chamber of Deputies and a Senate. 
The members of the Chamber of Deputies must be chosen by 
universal suffrage which includes all male citizens twenty-one 
years of age and over, who have resided in France for six 
months before voting. 

The New International Encyclopedia says: 

The constitutional laws now of force make no provision concern¬ 
ing the composition and organization of the Senate, and but scant 
provision in reference to its powers. A Statute of 1884, which super¬ 
seded the constitutional law on the subject, provides that it shall 
consist of 300 members, chosen by electoral colleges in the various 
departments. In each department this body consists: (1) of the 
deputies chosen in the particular department; (2) the members of 
the general council of the department; (3) the members of the coun¬ 
cils of the several arrondissements in the department; and (4) dele¬ 
gates chosen by the municipal councils of all the communes of the 
department. The senators are apportioned among the several de- 


120 


Government, French 


partments according to population, the number in each varying from 
1 to 10. In contrast to the method of choosing deputies, the senators 
from a given department are selected on a general ticket (scrutin de 
liste), each elector voting for the whole list. By statute the qualifica¬ 
tions of senators are fixed at citizenship and the completion of the 
fortieth year. There are also certain disqualifications similar tG 
those in the case of deputies. The New International Encyclopedia, 
Vol. IX, US. 

The constitution requires the chambers to assemble annually in 
January and to remain in session at least five months. The Presi¬ 
dent may convoke them at an earlier date, and he is bound to do so 
if the demand is made by a majority of the members composing each 
chamber. They may also be adjourned by the President; but the 
duration of the adjournment cannot exceed one month and is not per¬ 
mitted to occur more than twice in a session. Bills may be pre¬ 
sented in either chamber by private members or ministers, except that 
revenue measures must originate in the Chamber of Deputies. 
Whether the Senate has the right to amend the bills of this character 
is a disputed question. The Chamber of Deputies denies the right of 
the Senate to increase its revenue proposals, but the Senate has as¬ 
serted its right successfully on a number of occasions. All bills must 
be referred to a special committee for consideration before being taken 
up in either house. A measure duly passed by both chambers is sent 
to the President for his approval. He has neither an absolute nor a 
qualified veto, although he may demand reconsideration of the meas¬ 
ure, and a constitutional obligation rests upon the chambers to con¬ 
sider his objections; but if they repass the measure by the regular 
majority it becomes law in spite of the President’s objections. The 
New International Enclyclopedia, Vol. IX, 1^3. 

The judicial system of France is a purely statutory creation, the 
only constitutional provision on the subject being that which relates 
to the constitution of the Senate as an extraordinary court for certain 
cases. By statute a hierarchial system of judicial and administrative 
courts has been created. Of the judicial courts, the highest is the 
Court of Cassation at Paris, which is composed of a first president, 
three presidents of sections, and forty-five judges or councilors. Next 
below this tribunal are the 26 Courts of Appeal, each composed of a 
president and four councilors and with territorial jurisdiction over 
several departments. They hear cases from the Courts of First In¬ 
stance in the arrondissements, while these in turn hear appeals from 
decisions of the justices of the peace in the cantons (subdivisions of 
the arrondissements). These latter try civil cases and act as police 
judges for the disposal of petty offenses. For the trial of criminal 
cases involving penalties up to the imprisonment for five years, police 
correctional courts without juries are provided. More serious crimes 
are tried by courts of assizes, constituted periodically in each depart¬ 
ment, and including a jury of 12 men who are the sole judges of the 
question of guilt, and who fix the punishment. The ordinary civil 
courts are without juries, the judges alone deciding questions of fact 
as well as of the Republic, and their tenure, except in the bagavior. 
They can be removed only by the Court of Cassation. The New In¬ 
ternational Enclyclopedia, Vol. IX, 1U- 


Government, German 


121 


German Government 

The German government is a hybrid. It is part democratic, 
part autocratic, and part monarchial. It is part federal, and 
part national. The chief offices are partly filled by election, 
partly by appointment and partly hereditary. The Empire con¬ 
sists of twenty-six States, four kingdoms, six great duchies, 
five duchies, seven principalities, three free cities and Alsace- 
Lorraine, all of which are under the King of Prussia, the most 
important state, by virtue of the Constitution. This king is Em¬ 
peror of Germany and the office is hereditary. The States and 
dependences while federal are not at all equal. In fact all 
States and Empires are thus dominated and controlled by 
Prussia, which has the Emperor, and her Prime Minister, is 
the Chancellor of the Empire. Hence, the King of Prussia in 
truth and in fact rules and controls the whole of the Empire, 
both in civil and military affairs. Some of the States, Bavaria, 
Wiirtemberg, and Baden, have privileges that the other states 
do not possess, in being exempt from Imperiaf excises and 
have their own postal and telegraph systems. 

The Reichstag constitutes the national Parliament which 
represents the Empire as a whole, while the Bundesrat is the 
Federal Council, which represents the several States. The 
delegates composing the latter are chosen by the separate 
States. The members of the Reichstag are chosen by direct 
vote under universal suffrage and secret ballot. There are at 
present about four hundred members of the Reichstag but 
Prussia furnishes about three-fifths of the whole. The Bun¬ 
desrat contains about sixty members of which Prussia fur¬ 
nishes merely one-third. The Federal Council or Bundesrat 
originates most all bills and measures though the Reichstag 
may under rules originate certain measures. 

While the German government is a federation there is no 
States’ right doctrine. The federation was not founded by 
the people or by the States voluntarily as was done in the 
United States. The Empire was founded as a war measure, 
and partly by coercion, or a kind of duress. While mem¬ 
bers of the Reichstag are elected by universal suffrage and 
therefore pertaining to a Democracy, yet it is controlled by 
Prussia, which in turn is controlled by its King and his Coun¬ 
cillors, who in turn control the Empire. 

It is well said in the New International Encyclopedia that 
the Reichstag may be the voice of Germany but it is not the 
will. Others have said that it is not a legislative body or a 


122 


Government, Tyranny in 


Parliament but a national debating society. It is chiefly con¬ 
cerned in approving or disapproving the measures and poli¬ 
cies prepared by the Emperor through his Chancellor. It may 
adopt or resist the measures proposed, if rejected the result 
would be to elect others who would execute the will of the 
Emperor, which is but the will of the King of Prussia. 

The German government is, in fact, an absolute government 
and not a democracy. It is a central government and not a 
federation. It is an autocracy, ruled by Prussianism. It is 
more of a military government than a civil one. The people 
seem to know nothing of and to care nothing for individual 
liberty. The government is everything and the individual 
nothing. The people live and die for the government. The 
government is to rule the people but not to protect or to guar¬ 
antee to them liberty or happiness. Socialism is very strong 
in Germany. It will sooner or later destroy the government 
as it has done in Russia. 

The World*War of course resulted in radical changes in the 
government. The above related to the government prior to the 
World War and not subsequent. 

Tyranny in Government 

Mr. Bryce says of the abuse of power: 

Tyranny consists in the wanton and improper use of strength by 
the stronger, in the use of it to do things which one equal would 
not attempt against another. A majority is tyrannical when it de¬ 
cides without hearing the minority, when it suppresses fair and tem- 
porate criticism on its own acts, when it insists on restraining men 
in matters. where restraint is not required by the common interest, 
when it forces men to contribute money to objects which they disap¬ 
prove, and which the common interest does not demand. The ele¬ 
ment of tyranny lies in the wantonness of the act, a wantonness 
springing from the sense of overwhelming power, or in the fact that 
it is misuse for one purpose of power granted for another. It con¬ 
sists not in the form of the act, which may be perfectly legal, but in 
the spirit and temper it reveals, and in the sense of injustice and 
oppression which it evokes in the minority. 

Philosophers have long since perceived that the same tendencies to 
a wanton abuse of power which exist in a despot or a ruling oligarchy 
may be expected in a democracy from the ruling majority, because 
they are tendencies incidental to human nature. The danger was felt 
and feared by the sages of 1787, and a passage in the Federalist (No. 
L.) dwells on the safeguards which the great size of the Federal re¬ 
public, and the diverse elements of which it will be composed, offer 
against the tendency of a majority to oppress a minority. 

Since De Tocqueville delated upon this as the capital fault of the 
American government and people, Europeans, already prepared to ex- 


Government—Dangerous Forms of 


123 


pect to find the tyranny of the majority a characteristic sin of demo¬ 
cratic nations, have been accustomed to think of the United States as 
disgraced by it, and on the strength of this instance have predicted 
it as a necessary result of the growth of democracy in the Old World. 
Bryce on The American Commonwealth, Vol. I, 307-8. 

Dangers of Plutocracy 

Plutocracy used to be considered a form of oligarchy, and opposed 
to democracy. But there is a strong plutocratic element infused into 
American democracy 1 , and the fact that it is entirely unrecognized in 
constitutions makes it not less potent, and possibly more mischievous. 
The influence of money is one of the dangers which the people have 
always to guard against, for it assails not merely the legislatures but 
the party machinery, and its methods are as numerous as they are 
insidious. Bryce's American Commonwealth, Vol. II, Jfi'9. 

Anarchy and Rebellion 

In 1787 Mr. Jefferson wrote to Col. John Smith as follows: 

Wonderful is the effect of impudent and persevering lying. The 
British ministry have so long hired their gazeteers to repeat, and 
model into every form, lies about our being in anarchy, that the 
world has at length believed them, the English nation has believed 
them, the ministers themselves have come to believe them, and what 
is more wonderful, we have believed them ourselves. Yet where does 
this anarchy exist? Where did it ever exist, except in the single in¬ 
stance of Massachusetts? And can history produce an instance of re¬ 
bellion so honorably conducted? I say nothing of its motives. 6 
Jefferson's Writings (Mem. ed.), p. 372. 

What country before, ever existed a century and a half without a 
rebellion? And what country can preserve its liberties, if its rulers 
are not warned from time to time, that this people preserve the spirit 
of resistance? Let them take arms. The remedy is to set them right 
as to facts, pardon and pacify them. What signify a few lives lost 
in a century or two? The tree of liberty must be refreshed from 
time to time, with the blood of patriots and tyrants. It is its natural 
manure. Our convention has been too much impressed by the insur¬ 
rection of Massachusetts; and on the spur of the moment, they are 
setting up a kite to keep the henyard in order. I hope in God, this 
article will be rectified before the new constitution is accepted. 6 Jef¬ 
ferson's Writings (Mem. ed.), p. 373. 

Republican Governments 

In a republic, the sudden rise of a private citizen to exorbitant 
power produces monarchy, or something more than monarchy. In 
the latter, the laws have provided for, or in some measure adapted 
themselves to, the constitution; and the principle of government 

1 Mr. Bryce in another place in his rich because they held such places. It 

book, speaking of plutocracy in the should be said, however, that this is 

American Senate, says that some mem- no longer true of the Senate as it was 
bers of that body occupied their places when Mr. Bryce wrote, 
because they were rich, others were 


124 


Government, Republican in Form 


checks the monarch; but, in a republic, where a private citizen has 
obtained an exorbitant power, the abuse of this power is much greater, 
because the laws foresaw it not, and consequently made no provision 
against it. 

There is an exception to this rule, when the constitution is such 
as to have immediate need of a magistrate invested with an exorbi¬ 
tant power. Such was Rome with her state inquisitors: these are 
formidable magistrates, who restore, as it were by violence, the state 
to its liberty. Montesquieu’s Works, Book II, Chapter III. 

Virtue in a republic is a most simple thing; it is a love of the 
republic; it is a sensation, and not a consequence of acquired knowl¬ 
edge; a sensation that may be felt by the meanest as well as by the 
highest person in the state. When the common people adopt good 
maxims, they" adhere to them steadier than those we call gentlemen. 
It is very rare that corruption commences with the former: nay, they 
frequently derive from imperfect light a stronger attachment to the 
established laws and customs. 

The love of our country is conducive to a purity or morals, and 
the latter is again conducive to the former. The less we are able to 
satisfy our private passions, the more we abandon ourselves to those 
of a general nature. Montesquieu's Works, Book V, Chapter III. 

We have observed, that, in a republic where riches are equally 
divided, there can be no such things as luxury; and, as we have 
shown, in the fifth book, that this equal distribution constitutes the 
excellency of the republican government, hence it follows, that the 
less luxury there is in a republic, the more it is perfect. There was 
none among the old Romans, none among the Lacedemonians; and, 
in republics where this equality is not quite lost, the spirit of com¬ 
merce, industry, and virtue, renders every man able and willing to 
live on his own property, and consequently prevents the growth of 
luxury. Montesquieu's Works, Book VII, Chapter II. 

Luxury is therefore absolutely necessary in monarchies; as it is 
also in despotic states. In the former, it is the use of liberty; in the 
latter, it is the abuse of servitude. A slave, appointed by his master 
to tyrannize over other wretches of the same condition, uncertain 
of enjoying, to-morrow, the blessings of to-day, has no other delicity 
than that of glutting the pride, the passions, and voluptuousness, of 
the present moment. 

Hence arises a very natural reflection. Republics end with luxury; 
monarchies with poverty. Montesquieu's Works, Book VII, Chapter IV. 

In perusing the admirable treaties of Tacitus on the manners of 
the Germans, we find it is from that nation the English have bor¬ 
rowed the idea of their political government. This beautiful system 
was invented first in the woods. 

As all human things have an end, the State we are speaking of 
will lose this liberty, will perish. Have not Rome, Sparta, and Car¬ 
thage, perished?i It will perish when the legislative power shall be 
more corrupt than the executive. Montesquieu's Works, Book XI, 
Chapter VI. 

Another later, if not a greater publics perished because “Trial by 
sage, has said that those ancient re- Jury” was unknown to them. 


Government, Republican, Guaranteed 


125 


Aristotle mentions the city of Carthage as a well regulated re¬ 
public. Polybius tells us, that there was this inconvenience at Car¬ 
thage, in the Second Punic war, that the senate had lost almost all 
their authority. We are informed, by Livy, that, when Hannibal re¬ 
turned to Carthage, he found that the magistrates and the principal 
citizens had abused their power, and converted the public revenues 
to their private emolument. The virtue, therefore, of the magistrates, 
and the authority of the senate, both fell at the same time; and all 
was owing to the same cause. 

Every one knows the wonderful effects of the censorship among 
the Romans. There was a time when it grew burthensome; but still 
it was supported, because there was more luxury than corruption. 
Claudius weakened its authority; by which means the corruption be¬ 
came greater than the luxury, and the censorship dwindled away of 
itself. After various interruptions and resumptions, it was entirely 
laid aside till it became altogether useless; that is, till the reigns of 
Augustus and Claudius. Montesquieu's Works, Book Till, Chapter 
XIV. 

It is natural for a republic to have only a small territory; other¬ 
wise it cannot long subsist. In an extensive republic there are men 
of large fortunes, and consequently of less moderation: there are 
trusts too considerable to be placed in any single subject; he has in¬ 
terests of his own; he soon begins to think that he may be happy and 
glorious by oppressing his fellow-citizens; and that he may raise him¬ 
self to grandeur on the ruins of his country. 

In an extensive republic, the public good is sacrificed to a thou¬ 
sand private views; it is subordinate to exceptions, and depends on 
accidents. In a small one, the interest of the public is more obvious, 
better understood, and more within the reach of every citizen; abuses 
have less extent, and of course are less protected. 

The long duration of the republic of Sparta was owing to her hav¬ 
ing continued in the same extent of territory after all her wars. The 
sole aim of Sparta was' liberty; and the sole advantage of her liberty 
glory. Montesquieu's Works, Book VIII, Chapter XVI. 

Republican Form of Government Guaranteed 

In Luther v. Borden, 7 How. 1, it was held that the question which 
of the two opposing governments of Rhode Island, namely, the char¬ 
ter government or the government established by a voluntary con¬ 
vention, was the legitimate one, was a question for the determination 
of the political department, and when that department had decided, 
the courts were bound to take notice of the decision and follow it. 
Miller's Const, p. 6J/0. 

Mr. Webster’s argument in that case took a wider sweep and con¬ 
tained a masterly statement of the American system of government, 
as recognizing that the people are the source of all political power, 
but that as the exercise of governmental powers immediately by the 
people themselves is impracticable, they must be exercised by repre¬ 
sentatives of the people; that the basis of representation is suffrage; 
that the right of suffrage must be protected and its exercise pre¬ 
scribed by previous law, and the results ascertained by some certain 


126 


Government — Democracies, Faults of 


rule; that through its regulated exercise each man’s power tells in 
the Constitution of the Government and in the enactment of laws. 
Miller's Const, p. 6^1. 

Real Faults of Democracies 

Mr. Bryce thus describes some faults: 

The American masses have been obliged, both by democratic 
theory and by structure of their government, to proceed upon the as¬ 
sumption of their own competence. They have succeeded better than 
could have been expected. No people except the choicest children of 
England, long trained by the practice of local self-government at home 
and in the colonies before their revolt, could have succeeded half so 
well. Still the masses of the United States as one finds them to-day 
are no exception to the rule that some problems are beyond the com¬ 
petence of the average man. They can deal with broad and simple 
issues, especially with issues into which a moral element enters. They 
spoke out with a clear strong voice upon slavery, when at last it had 
become plain that slavery must either spread or vanish, and threw 
themselves with enthusiasm into the struggle for the Union. Their 
instinctive dislike for foreign annexation foiled President Grant’s 
plan for acquiring San Domingo. Their sense of national and com¬ 
mercial honour has defeated more than one mischievous scheme for 
tampering with the public debt. But when a question of intricacy 
presents itself, requiring either keen foresight, exact reasoning, or 
wide knowledge, they are at fault. Questions relating to currency 
and coinage, free trade or of municipal governments, the control of 
corporations by the law, the method of securing purity of elections, 
these are problems which have continued to baffle them, just as the 
Free Soil question did before the war or the reconstruction of the 
revolted Southern States for a long time after it. Bryce's American 
Commonwealth, Vol. II, J}55. 

The Spoils System reminds us of the Machine and the whole or¬ 
ganization of Rings and Bosses. This is the ugliest feature in the 
current politics of the country. Must it be set down to democracy? 
To some extent, yes. It could not have grown up save in a popular 
government; and some of the arrangements which have aided its 
growth, such as the number and frequency of elections, have been 
dictated by what may be called the narrow doctrinarism of democ¬ 
racy. But these arrangements are not essential to the safety of the 
government; and the other causes which have brought the machine 
politics of cities seem to be preventible causes. Bryce's American 
Commonwealth, Vol. II, J/57. 

In America it may be expected that the more active conscience 
of the people and the reform of the civil service will cut down, if 
they do not wholly eradicate, such corruption as now infests the leg¬ 
islative bodies, while better ballot and election laws may do the 
same for the constituencies. 

A European critic may remark that this way of presenting the case 
ignores the evils and losses which defective government involves. 
“If,” he will say, “the mass of mankind possess neither the knowledge- 


Government — Democracies, Faults of 


127 


nor the leisure nor the skill to determine the legislation and policy of 
a great state, will not the vigour of the commonwealth decline and 
its resources be squandered? Will not a nation ruled by its average 
men in reliance on their own average wisdom be overtaken in the 

race of prosperity or overpowered in a warlike struggle by a nation 

of equal resources which is guided by its most capable minds?” The 
answer to this criticism is that America has hitherto been able to 
afford to squander her resources, and that no other state threatened 
her. With her wealth and in her position she can with impunity 
commit errors which might be fatal to the nations of Western Eu¬ 
rope. Bryce's American Commonwealth, Vol. II, Jf58-9. 

The commonest of the old charges against democracy was that it 
passed into ochlocracy. I have sought to show that this has not hap¬ 
pened, and is not likely to happen in America. The features of mob- 
rule do not appear in her system, whose most characteristic faults 

are the existence of a class of persons using government as a means 

of private gain and the menacing power of wealth. Plutocracy, which 
the ancients contrasted with democracy, has shown in America an 
inauspicious affinity for certain professedly democratic institutions. 

Perhaps no form of government needs great leaders so much as 
democracy. The fatalist habit of mind perceptible among the Ameri¬ 
cans needs to be corrected by the spectacle of courage and independ¬ 
ence taking their own path, and not looking to see whether the mass 
are moving. Those whose material prosperity tends to lap them in 
self-complacency and dull the edge of aspiration, need to be thrilled 
by the emotions which great men can excite, stimulated by the ideals 
they present, stirred to a loftier sense of what national life may at¬ 
tain. In some countries men of brilliant gifts may be dangerous to 
freedom; but the ambition of American statesmen has been schooled 
to flow in constitutional channels, and the Republic is strong enough 
to stand any strain to which the rise of heroes may expose her. 
Bryce's American Commonwealth, Vol. II, J^GO. 

Supposed Faults of Democracies 

Mr. Bryce thus states the case; 

We have to ask first, how. far the faults usually charged on democ¬ 
racy are present in America; next, why are the special faults which 
characterize it there? last, what are the strong points which it has 
developed? 

The chief faults which philosophers, from Plato downwards to Mr. 
Robert Lowe, and popular repeating and caricaturing the dicta of 
philosophers, have attributed to democratic governments, are the fol¬ 
lowing : 

Weakness in emergencies, incapacity to act with promptitude and 
decision. 

Fickleness and instability, frequent changes of opinion, conse¬ 
quent changes in the conduct, of affairs and in executive officials. 

Insubordination, internal dissensions, disregard of authority, a 
frequent resort of violence, bringing on anarchy which ends in mili 
tary tyranny. 


128 


Government — Democracies, Strength of 


A desire to level down, and intolerance of greatness. 

Tyranny of the majority over the minority. 

A love of novelty: a passion for changing customs and destroying 
old institutions. 

Ignorance and folly, producing a liability to be deceived and mis¬ 
led; consequent growth of demagogues playing on the passions and 
selfishness of the masses. Bryce's American Commonwealth, Vol. II, 
436-7. 

A demagogue of greater talent may aspire to some high executive 
office; if not to the Presidency, then perhaps a place in the Cabinet, 
where he may practically pull the wires of a President whom he has 
put into the chair. Failing either of these, he aims at the governor¬ 
ship of his State or the mayoralty of a great city. In no one of these 
positions can he do permanent harm. The Federal executive has no 
influence on legislation, and even in foreign policy and in the making 
of appointments requires the consent of the Senate. That any man 
should acquire so great a hold on the country as to secure the election 
of two Houses of Congress subservient to his will, while at the same 
time securing the Presidency of Secretaryship of State for himself, is 
an event too improbable to enter into calculation. Nothing approach¬ 
ing it has been seen since the days of Jackson. The size of the coun¬ 
try, the difference between the States, a hundred other causes, v make 
achievements possible enough in a European country all but impossi¬ 
ble here. Bryce's American Commonwealth, Vol. II, 443. 

Of the faults traditionally attributed to democracy one only is 
fairly chargeable on the United States; that is to say, is manifested 
there more conspicuously than in the constitutional monarchies of 
Europe. This is the disposition to be lax in enforcing laws disliked 
by any large part of the population, and to be too indulgent to offend¬ 
ers and law-breakers generally. Bryce's American Commonwealth , 
Vol. II, 449. 

Democracy the Strength of America 

The people are profoundly attached to the form which their natural 
life has taken. The Federal Constitution is, to their eyes, an almost 
sacred thing, an Ark of the Covenant, whereon no man may lay rash 
hands. Everywhere in Europe one hears schemes of radical change 
freely discussed. There is a strong monarchial party in France, a 
republican party in Italy and Spain. There are anarchists in Ger¬ 
many and Russia. Even in England, it is impossible to feel confident 
that any one of the existing institutions of the country will be stand¬ 
ing fifty years hence. But in the United States the discussion of 
political problems busies itself with details and assumes that the 
main lines must remain as they are forever. This conservative 
spirit, jealousy watchful even in small matters, sometimes prevents 
reforms, but it assures to the people an easy mind, and a trust in their 
future, which they feel to be not only present satisfaction but a reser¬ 
voir of strength. Bryce's American Commonwealth, Vol. II, 461. 

Everything that government, as the Americans have hitherto un¬ 
derstood the term, can give them, the poor have already, political 
power, equal civil rights, a career open to all citizens alike, not to 


129 


Government — Democracies, Strength of 


speak of that gratuitous higher as well as elementary education which 
on their own economic principles the United States might hare ab¬ 
stained from giving, but which political reasons have led them to 
provide with so unstinting a hand. Hence the poor have had noth¬ 
ing to fight for, no grounds for disliking the well-to-do, no complaints 
to make against them. The agitation of the last few years has been 
directed, not against the richer classes generally, but against incor¬ 
porated companies and a few individual capitalists, who have not un- 
frequently abused the powers which the privilege of incorporation 
conferred upon them, or employed their wealth to procure legislation 
opposed to the public interests. Where language has been used like 
that with which France and Germany are familiar, it has been used, 
not by native Americans,- but by newcomers, who bring their Old 
World passions with them. 1 Property is safe, because those who hold 
it are far more numerous than those who do not: the usual motives 
for revolution vanish; universal suffrage, even when,vested in ig¬ 
norant newcomers, can do comparatively little harm, because the 
masses have obtained everything which they could hope to attain ex¬ 
cept by a general pillage. And the native Americans, though the 
same cannot be said of some of the recent immigrants, are shrewd 
enough to see that the poor would suffer from such pillage no less 
than the rich. Bryce's American Commonwealth, Vol. II, 466 . 

Some American panegyrists of democracy have weakened their 
own case by claiming all the triumphs which modern science has 
wrought in a land of unequaled natural resources as the result of a 
form of government. An active European race would probably have 
made America rich and prosperous under any government. But the 
volume and the character of the prosperity attained may be in large 
measure ascribed to the institutions of the country. Bryce's American 
Commonwealth, Vol. II, 467. 

The successful establishment and support of religious institutions 
—churches, seminaries, and religious charities—upon a purely volun¬ 
tary system, is an unprecedented achievement of the American 
democracy. In only three generations American democratic society 
has effected the complete separation of Church and State, a reform 
which no other people has ever attempted. Yet religious institu¬ 
tions are not stinted in the United States; on the contrary, they 
abound and thrive, and all alike are protected and encouraged, but 
not supported, by the State. Bryce's American Commonwealth, Vol. 
II, 468. 

The University of Strasburg was lately established by an imperial 
decree, and is chiefly maintained out of revenue of the State. Har- 


1 American Democracy has suffered 
and is suffering from foreign immi¬ 
gration. Foreigners coming to the 
United States mistake often liberty for 
licentiousness; freedom for lawless¬ 
ness ; democracy for socialism and 
anarchy. They seem unable to under¬ 
stand that governments are to protect 
the people in the enjoyment of liberty 
and freedom, and not to persecute and 
tyrannize them. They seem to think 
that the sole object of government is 
to oppress the people or masses there¬ 


of for the benefit of select classes. 

For this reason their object and pur¬ 
pose is to destroy all forms of govern¬ 
ment, and to substitute therefor the 
will of the rabble which is usually 
made up of the very worst elements 
of society. 

They appeal always to prejudice 
and passion and not to reason, the 
ignorant and credulous are ready and 
easy victims of the clamor of these 
foreign agitators and mal and discon¬ 
tents. 


130 


Government, Equality of People in 


vard University has been two hundred and fifty years in growing to 
its present stature, and is even now inferior at many points to the 
new University of Strasburg; but Harvard is the creation of thou¬ 
sands of persons, living and dead, rich and poor, learned and simple, 
who have voluntarily given it their time, thought, or money, and 
lavished upon it their affection; Strasburg exists by the mandate of 
the ruling few directing upon it a part of the product of ordinary 
taxation. Like the voluntary system in religion, the voluntary sys¬ 
tem in the higher education buttresses democracy; each demands 
from the community a large outlay of intellectual activity and moral 
vigour. Bryce's American Commonwealth, Vol. II, 469. 

Democracy has not only taught the Americans how to use liberty 
without abusing it, and how to secure equality; it has also taught 
them fraternity. That word has been out of the fashion in the Old 
World, and no wonder, considering what was done in its name in 
1793, considering also that it still figures in the programme of as¬ 
sassins. Nevertheless there is in the United States a sort of kindli¬ 
ness, a sense of human fellowship, a recognition of the duty of mutual 
help owed by man to man, stronger than anywhere in the Old World, 
and certainly stronger than in the upper or middle classes of England, 
France or Germany. The natural impulse of every citizen in America 
is to respect every other citizen, and to feel that citizenship consti¬ 
tutes a certain ground of respect. The idea of each man's equal rights 
is so fully realized that the rich or powerful man feels it no indignity 
to take his turn among the crowd, and does not expect any difference 
from the poorest. An employer of labour has, I think, a keener sense 
of his duty to those whom he employs than employers have in Europe. 
Bryce's American Commonwealth, Vol. II, 411- 

Mr. Bryce, in speaking of American democracy as available 
for Europe, says: 

America has in some respects anticipated European nations. She 
is walking before them along a path which they may probably follow 
She carried behind her, to adopt a famous simile of Dante’s, a lamp 
whose light helps those who come after more than it always does 
herself, because some of the dangers she had passed through may not 
recur at any other point in her path; whereas they, following in her 
footsteps, may stumble in the same stony places, or be entangled in 
the quagmires from which she suffered. Bryce's American Common¬ 
wealth, Vol. II, 475. 

Democracy—Equality of the People 

The principle of democracy is corrupted, not only when the spirit 
of equality is extinct, but likewise when they fall into a spirit of ex¬ 
treme equality, and when each citizen would fain be upon a level 
with those whom he has chosen to command him. Then the people, 
incapable of bearing the very power they have delegated, want to 
manage everything themselves, to debate for the senate, to execute for 
the magistrate, and to decide for the judges. 

When this is the case virtue can no longer subsist in the republic. 
The people are desirous of exercising the functions of the magistrates; 


Government — Democracies, Pure and Representative 131 

who cease to be revered. The deliberations of the senate are slighted: 
all respect is then laid aside for the senators, and consequently for 
old age, there will be none presently for parents: deference to hus¬ 
bands will be likewise thrown off, and submission to masters. This 
licentiousness will soon become general, and the trouble of command 
be as fatiguing as that of obedience. Montesquieu’s Works, Book VIII, 
Chapter II. 

We find, in Xenophon's Banquet, a very lively description of a re¬ 
public in which the people abused their equality. Each guest gives, 
in his turn, the reason why he is satisfied. “Content I am,” says 
Chamides, “because of my poverty. When I was rich, I was obliged 
to pay my court to informers knowing I was more liable to be hurt by 
them than capable of doing them harm. The republic constantly de¬ 
manded some new tax of me; and I could not decline paying. Since 
I am grown poor, I have acquired authority; nobody threatens me; 
I rather threaten others. I can go or stay where I please. The rich 
already rise from their seats and give me the way. I am a king; I 
was before a slave: I paid taxes to the republic; now it maintains 
me: I am no longer afraid of losing, but I hope to acquire.” Mon¬ 
tesquieu's Works, Book VIII, Chapter II. 

Democracy hath, therefore, two excesses to avoid; the spirit of 
inequality, which leads to aristocracy or monarchy, and the spirit of 
extreme equality, which leads to despotic power, as the latter is com¬ 
pleted by conquest. Montesquieu's Works, Book VIII, Chapter II. 

As distant as heaven is from earth, so is the true spirit of equality 
from that of extreme equality. The former does not imply that every 
body should command, or that no one should be commanded, but that 
we obey or command our equals. It endeavours not to shake off the 
authority of a master, but that its masters should be none but its 
equals. 

In the state of nature indeed, all men are born equal; but they 
cannot continue in this equality: society makes them lose it, and 
they recover it only by the protection of the laws. 

Such is the difference between a well regulated democracy and one 
that is not so, that in the former, men are equal only as magistrates, 
as senators, as judges, as fathers, as husbands, or as masters. 

The natural place of virtue is near to liberty; but it is not nearer 
to excessive liberty than to servitude. Montesquieu's Works, Book 
VIII, Chapter III. 

Pure and Representative Democracies 

Garner, in his late work on Political Science, says: “Democracies 
are of two kinds, pure or direct, and representative and indirect. A 
pure democracy is one in which the will of the state is formulated 
and expressed directly and immediately through the people acting in 
their primary capacity. A representative democracy is one in which 
the will of the state is ascertained and expressed through the agency 
of a small and select number who act as the representatives of the 
people. A pure democracy is practicable only in small states where 
the voting population may be assembled for purposes of legislation, 
and where the collective needs of’the people are few and simple. In 


132 Government — Democracies, Pure and Representative 

large and complex societies where the legislative wants of the people 
are numerous, the very necessities of the situation make government 
by the whole body of the citizens a physical impossibility. . . . 

What is in substance a representative democracy is sometimes called 
a republican or representative government. ... A pure or direct 
type exists in too narrow and restricted a form and is too impracti¬ 
cable to merit extended consideration. Sufficient for the needs of the 
few small communities where it still survives, it is wholly unsuited 
to the conditions of the complex states of to-day.” The Constitutional 
Review , Vol. I, 16. 

Madison, in expounding the Constitution, in the Federalist, said: 
“A pure democracy can admit of no cure for the mischiefs of factions. 
A common passion of interest will in almost every case be felt by a 
majority of the whole.” The Constitutional Review, Vol. I, 17. 

Webster, in his speech on the Rhode Island government, in 1848, 
said: “The people cannot act daily as the people. They must estab¬ 
lish a government and invest it with as much of sovereign power as 
the case requires. . . . The exercise of legislative power and the 

other powers of government immediately by the people themselves is 
impracticable.” The Constitutional Review, Vol. I, 17. 

Leckey, in his “Democracy and Liberty,” says: “One thing is ab¬ 
solutely essential to its safe working, namely, a written constitution 
securing property and contracts; placing difficulties in the way of 
organic change; restricting the power of the majorities, and prevent¬ 
ing outbursts of mere temporary discontent and mere casual condi¬ 
tions from overturning the main pillars of the state.” 

Mill, in his Essay on Government, says: “In this great discovery 
of modern times, the system of representation, the solution of all the 
difficulties, both speculative and practical, will perhaps be found. If 
it cannot, we seem to be forced upon the extraordinary conclusion 
that popular government is impossible. . . . The community can 

act only when assembled, and when assembled it is incapable of act¬ 
ing. The community, however, can choose representatives.” 

Tucker, in his work on the Constitution, says: “Representation is 
the modern method by which the will of a great multitude may ex¬ 
press itself through an elected body of men for deliberation in law¬ 
making. It is the only practicable way by which a large country can 
give expression to its will in deliberate legislation. Give suffrage to 
the people; let law-making be in the hands of their representatives; 
and make the representatives responsible at short periods to the popu¬ 
lar judgment, and the rights of men will be safe, for they will se¬ 
lect only such as will protect their rights and dismiss those who, 
upon trial, will not. . . . The government of the numerical ma¬ 
jority is the mechanism of brute force.” The Constitutional Review, 
Vol. I, 18. 

Judge Young, in an article in the Constitutional Review, 
propounds these questions as to a change in our government 
from the Representative to a pure democracy: 

Are we ready to submit ourselves to the doctrine that the ma¬ 
jority as they express themselves from time to time are always right? 


Government — Democracies, Equalities of 


133 


Are we ready to agree that no obstructions should be placed upon the 
dominating will of an existing majority? And by the majority we do 
not mean a majority of all the people, but of the electors. The electors 
are but one-fifth of the people and a majority at any election means 
no more than one-tenth of the people, who are affected. Are we ready 
to say that all public officers shall follow the wish of the majority of 
electors? That courts shall construe statutes and constitutional pro¬ 
visions in accordance w r ith the will of the majority as they shall ex¬ 
press it at any time? Are we ready to say that controversies shall be 
decided by our judicial tribunals as the majority of the electorate shall 
will? Will we agree that the guarantee to individuals and to minori¬ 
ties contained in the Federal Constitution shall be subject to the con¬ 
trol of an impassioned majority? 

Are we ready, at the command of a majority of electors to give up 
our religious freedom and agree to the establishment of a state re¬ 
ligion? Are we prepared to surrender the rights of free speech and 
the freedom of the press—the right to peaceably assemble and the 
right to petition—whenever a prevailing majority of electors shall 
so decide? Will we permit a majority to deny to us the great liberty 
writ, the writ of habeas corpus? Shall we agree that a majority may 
pass bills of attainder and make acts which are innocent to-day, crimes 
to-morrow? Are we ready to agree that a majority may provide that 
soldiers shall be quartered in our homes without our consent in times 
of peace? That our persons and houses and effects shall not be free 
from unreasonable searches and seizures? That warrants may issue 
without probable cause—that we may be held to answer for crimes 
without a presentment—that we may be put twice in jeopardy for the. 
same offense—that we may be compelled to be witness against our¬ 
selves in criminal cases—that our property may be taken for public use 
without just compensation—that we may be deprived of life, liberty 
and property without due process of law—that we shall have no right 
to speedy and public trial by an impartial jury—that we shall have no 
right to be confronted by the witnesses against us—that we shall have 
no right to process to compel the attendance of witnesses in our favor, 
or to have counsel to aid us in our defense—that excessive bail may 
be required and cruel and unusual punishments may be inflicted? 

These are some of the rights guaranteed to us by the Federal 
Constitution, which the promoters of the present revolution ask us 
to imperil by, adopting the purely democratic form of government. 

Our ship of state is proof against external force. It is not proof 
against internal violence. The Constitutional Review, Vol. I, 21, 22. 

Equalities Under Government of Democracies 

Montesquieu thus describes Democracies: 

The love of equality, in a democracy, limits ambition to the sole 
desire, to the sole happiness, of doing greater services to our country 
than the rest of our fellow-citizens. They cannot all render her equal 
services, but they all ought to serve her with equal alacrity. At our 
coming into the world, we contract an immense debt to our country, 
which we can never discharge. Montesquieu's Works, Book V, Chap¬ 
ter III. ' 


134 


Government—Democracy and Autocracy 


It is not sufficient, in a well-regulated democracy, that the divisions 
of land be equal; they ought also to be small, as was customary among 
the Romans. “God forbid,” said Curius to his soldiers, “that a citi¬ 
zen should look upon that as a small piece of land which is sufficient 
to maintain him.” Montesquieu's Works, Book V, Chapter VI. 

An equal division of lands cannot be established in all democracies. 
There are some circumstances in which a regulation of this nature 
would be impracticable, dangerous, and even subversive of the con¬ 
stitution. We are not always obliged to proceed to extremes. If it 
appear that this division of lands, which was designed to preserve 
the people’s morals, does not suit with democracy, recourse must be 
had to other methods. Montesquieu's Works, Book V, Chapter VII. 

Democracy and Autocracy Compared 

When the body of the people is possessed of the supreme power, 
this is called a democracy. When the supreme power is lodged in the 
hands of a part of the people, it is then an autocracy. 

In a democracy the people are in some respects the sovereign, and 
in others the subject. 

There can be no exercise of sovereignty but by their suffrages, 
which are their own will: now, the sovereign’s will is the sovereign 
himjself. The laws, therefore, which establish the right of suffrage, 
are fundamental to this government. And indeed it is as important 
to regulate, in a republic, in what manner, by whom, to whom, and 
concerning what, suffrages are to be given, as it is, in a monarchy, 
to know who is the prince, and after what manner he ought to gov¬ 
ern. Montesquieu's Works, Book II, Chapter II. 

The people, in whom the supreme power resides, ought to have 
the management of everything within their reach: what exceeds their 
abilities must be conducted by their ministers. 

But they cannot properly be said to have their ministers, without 
the power of nominating them: it is therefore a fundamental maxim, 
in this government, that the people should choose their ministers; 
that is, their magistrates. 

They have occasion, as well as monarchs, and even more so, to be 
directed by a council or senate. But, to have a proper confidence in 
these, they should have the choosing of the members; whether the 
election be made by themselves, as at Athens; or by some magistrate, 
deputed for the purpose, as on certain occasions was customary at 
Rome. 

The people are extremely well qualified for choosing those whom 
they are to intrust with part of their authority. They have only to be 
determined by things to which they cannot be strangers, and by facts 
that are obvious to sense. Montesquieu's Works, Book II, Chapter II. 

The law which determines the manner of giving suffrage is likewise 
fundamental in a democracy. It is a question of some importance, 
whether the suffrages ought to be public or secret. Cicero observes, 
that the laws which rendered them secret, towards the close of the 
republic, wei^e the cause of its decline. Montesquieu's Works, Book 
II, Chapter II. 


Government, Local Self- 


135 


It is likewise a fundamental law, in democracies, that the people 
should have the sole power to enact laws. And yet there are a thou¬ 
sand occasions on which it is necessary the senate should have a 
power of decreeing: nay, it is frequently proper to make some trial 
of law before it is established. The constitutions of Rome and Athens 
were excellent. The decrees of the senate had the force of laws for 
the space of a year, but did not become perpetual till they were ratified 
by the consent of the people. Montesquieu's Works, Book II, Chap¬ 
ter II. 

Local Self-Government 

Dr. Lieber thus describes Local Self-Government: 

Jefferson said, in 1798, that “the residuary rights are reserved to 
their (the American states’) own self-government The term is now 
freely used both in England and America. In the former country we 
find a book on Local Self-Government; in ours, Daniel Webster said, 
on May 22d, 1852, in his Faneuil Hall speech: “But I say to you and 
to our whole country, and to all the crowned heads and aristocratic 
powers and feudal systems that exist, that it is to self-government, 
the great principle of popular representation and administration— 
the system that lets in all to participate in the counsels that are to 
assign the good or evil to all—that we may owe what we are and 
what we hope to be.” 

Earl Derby, when premier, said, in the house of lords, that the 
officers sent from abroad to assist in the funeral of the Duke of Well¬ 
ington would “bear witness back to their own country how safely and 
to what extent a people might be relied upon in whom the strongest 
hold of their government was their own reverence and respect for 
the free institutions of their country, and the principles of popular 
self-government controlled and modified by constitutional monarchy.” 
Lieber's Civil Liberty ancl Self-Government, 21ft. 

American liberty belongs to the great division of Anglican liberty. 
It is founded upon the checks, guarantees, and self-government of the 
Anglican race. The trial by jury, the representative government, the 
common law, self-taxation, the supremacy of the law, publicity, the 
submission of the army to the legislature, and whatever else has 
been enumerated, form part and parcel of our liberty. There are, 
however, features and guarantees which are peculiar to ourselves, 
and which, therefore, we may say constitute American liberty. They 
may be summed up, perhaps, under these heads; republican federalism, 
strict separation of the state from the church, greater equality and 
acknowledgment of abstract rights in the citizen, and a more popular 
or democratic cast of the whole polity. 

The Americans do not say that there can be no liberty without re¬ 
publicanism, nor do they, indeed, believe that wherever a republican 
of kingless government exists, there is liberty. The founders of our 
own independence acknowledged that freedom can exist under a mon¬ 
archical government, in the very act of their declaration of inde¬ 
pendence. Lieber's Civil Liberty and Self-Government, 256. 


136 


Government, Local Self- 


On the 12th of June, 1823, Mr. Jefferson wrote the follow¬ 
ing to William Johnson, one of the Justices of the Supreme 
Court of the United States: 

The States supposed that by their tenth amendment, they had se¬ 
cured themselves constructive powers. They were not lessoned yet 
by Cohen’s case, nor aware of the slipperiness of the eels of the law. 
I ask for no straining of words against the General Government, nor 
yet against .the States. I believe the States can best govern our 
home concerns, and the General Government our foreign ones. I 
wish, therefore, to see maintained that wholesome distribution of 
powers established by the Constitution for the limitation of both; 
and never to see all offices transferred to Washington, where, further 
withdrawn from the eyes of the people, they may more secretly be 
bought and sold as at market. 

Mr. Jefferson believed in local self-government, as well as 
a federal government. He thus describes and defines the 
powers: 

These wards, called townships in New England, are the vital prin¬ 
ciple of their governments, and have proved themselves the wisest 
invention ever devised by the wit of man for the perfect exercise of 
self-government, and for its preservation. We should thus marshal 
our government into, 1, the general federal republic, for all concerns 
foreign and federal; 2, that of State, for what relates to our own citi¬ 
zens exclusively; 3, the county republics, for the duties and concerns 
of the county; and 4, the ward republics, for the small, and yet nu¬ 
merous and interesting concerns of the neighborhood; and in gov¬ 
ernment, as well as in every other business of life, it is by division 
and subdivision of duties alone, that all matters, great and small, can 
be managed to perfection. And the whole is cemented by giving to 
every citizen, personally, a part in the administration of the public 
affairs. 15 Jefferson's Writmgs (Mem. ed.), p. 38. 

Judge Dillon thus speaks of American Local Self-Govern¬ 
ment : 

In this country the system of decentralizing political power, and 
of intrusting the direction of local affairs to the local constituencies, 
has from the earliest colonial periods been carried to a much greater 
extent than in England. As you pass from one end of this country 
to the other, alike in the older regions and in the newest organized 
settlements, you will see the affairs of each road district, school-dis¬ 
trict, township, county, village, and city locally self-managed, in¬ 
cluding the administration of local justice. Every township in the 
United States has a local court, with power to summon a jury of 
vicinage, thereby bringing justice home to the business and bosoms 
of the people, and making it their own affair. We are somewhat apt 
to look with disdain upon the courts held by justices of the peace; but 
in reality we have few more useful institutions. The eyes of the or¬ 
dinary justice have not, indeed, been couched to the “gladsome light 
of jurisprudence.” He may be prone to make technical mistakes; but 


Government, Local Self- 


137 


in general he manages, by himself or the jury, to work out substantial 
justice in the decision of the disputes arising out of the every-day 
affairs of the people. The Law and Jurisprudence of England and 
America, 160-1. 

The assembly of citizens here described are mere local assem¬ 
blies, not assemblies of a nation, but a district; and it seems not a 
little remarkable that this learned writer should have said that such 
meetings of the whole body of citizens in their primary capacity as 
men could be seen in no other part of the world. For more than two 
hundred years New England town-meetings had been continuously 
held, where every citizen was entitled to meet and vote,—to determine 
and settle their local affairs, and to elect the public officers by which 
those affairs were to be administered for the coming year. And in 
essence the same powers are now exercised by the whole body of the 
citizens of the thousands of municipal and public corporations in the 
American States. The Laws and Jurisprudence of England and 
America, 163. 

Mr. Bryce says of local self-government: 

Nothing has more contributed to give strength and flexibility to 
the government of the United States, or to train the masses of the 
people to work their democratic institutions, than the existence every¬ 
where in the northern States of self-governing administrative units, 
such as townships, small enough to enlist the personal interest and 
be subject to the personal watchfulness and control of the ordinary 
citizen. Abuses have indeed sprung up in the cities, and in the case 
of the largest among them have become formidable, partly because 
the principle of local control has not been sufficiently adhered to. 
Nevertheless the system of local government as a whole has been not 
merely beneficial, but indispensable, and well deserves the study of 
those who in Europe are alive to the evils of centralization, and per¬ 
ceive that those evils will not necessarily diminish with a further 
democratization of such countries as England, Germany and Italy. 
I do not say that in any of the other great European states the mass 
of the rural population is equally competent with the American to 
work such a system: still it presents a model towards which European 
institutions ought to tend, while the examples of cities like New York 
and Philadelphia offer salutary warnings of what municipal govern¬ 
ments ought to avoid. Bryce's American Commonwealth, Vol. II, 
lft 8. 

Law will never be strong or respected unless it has the sentiment 
of the people behind it. If the people of a State make bad laws, they 
will suffer for it. They will be the first to suffer. Let them suffer. 
Suffering, and nothing else, will implant that sense of responsibility 
which is the first step to reform. Therefore let them stew in their 
own juice: let them make their bed and lie upon it. If they drive 
capital away, there will be less work for the artisans: if they do not 
endorse contracts, trade will decline, and the evil will work out its 
remedy sooner or later. Perhaps it will be later rather than sooner: 
if so, the experience will be all the more conclusive. It is said that 
the minority of wise and peaceable citizens may suffer? Let them 


138 


Government, Local Self- 


exert themselves to bring their fellows round to better mind. Rea¬ 
son and experience will be on their side. We cannot be democrats by 
halves; and where the self-government is given, the majority of the 
community must rule. Its rule will in the end be better than that of 
any external power. No doctrine more completely pervades the 
American people, the instructed as well as the uninstructed. Philos¬ 
ophers will tell you that it is the method by which Nature governs, 
whose laws carry their own sanction with them. Divines will tell 
you that it is the method by which God governs: God is a righteous 
Judge and God is provoked every day, yet He makes His sun to rise 
on the evil and the good, and sends rain upon the just and the unjust, 
He does not directly intervene to punish faults, but leaves sin to 
bring its own appointed penalty. Statesmen will point to the troubles 
which followed the attempt to govern the unconquered seceding 
States, first by military force and then" by keeping a great part of 
their population disfranchised, and will declare that such evils as 
still exist in the South are far less grave than those which the denial 
or ordinary self-government involved. “So,” they pursue, “Texas and 
California will in time unlearn their bad habits and come out right 
if we leave them alone: Federal interference, even had we the ma¬ 
chinery needed for prosecuting it, would check the natural process by 
which the better elements in these raw communities are purging 
away the maladies of youth, and reaching the settled health of man¬ 
hood.” 

A European may say that there is a dangerous side to this appli¬ 
cation of democratic faith in local majorities and in laissez aller. 
Doubtless there is: yet those who have learnt to know the Ameri¬ 
cans will answer that no nation so well understands its own busi¬ 
ness. Bryce's American Commonwealth, Vol. I, 332-3. 

As, in a country of liberty, every man who is supposed a free 
agent ought to be his own governor, the legislative power should re¬ 
side in the whole body of the people. But, since this is impossible in 
large states, and in small ones is subject to many inconveniences, 
it is fit the people should transact by their representatives what they 
cannot transact by themselves. 

The inhabitants of a particular town are much better acquainted 
with its wants and interests than with those of other places; and are 
better judges of the capacity of their neighbors than that of the rest 
of their countrymen. The members, therefore, of the legislature 
should not be chosen from the general body of the nation; but it is 
proper, that, in every considerable place, a representative should be 
elected by the inhabitants. 

The great advantage of representatives is, their capacity of dis¬ 
cussing public affairs. For this, the people collectively are extremely 
unfit, which is one of the chief inconveniences of a democracy. Mom 
tesquieu's Works, Book XI, Chapter VI. 

The Supreme Court of United States thus states the doc¬ 
trine : 

Experience has shown that in a country of great territorial extent 
and varied interests, peace and lasting prosperity can exist with a 


Government, Institutional 


139 


civilized people only when local affairs are controlled by local au¬ 
thority, and, at the same time, there are lodged in the general govern¬ 
ment of the country such sovereign powers, as will enable it to regu¬ 
late the intercourse of its people with foreign nations and between 
the several communities, protect them in all their rights in such in¬ 
tercourse, defend the country against invasion and domestic violence, 
and maintain the supremacy of the laws throughout its whole domain. 
This principle the framers of the constitution acted upon in estab¬ 
lishing the government of the Union, by leaving unimpaired the 
power of the states to control all matters of local interest, and creat¬ 
ing a new government of sovereign powers for matters of general 
and national concern. They thus succeeded in reconciling local self- 
government, or home rule, with the exercise of national sovereignty 
for national purposes. Under this dual government each state may 
pursue the policy best suited to its people and resources, though un¬ 
like that of another state. And yet there can be no violent conflicts 
so long as the central government exercises its rightful power, and 
secures them against foreign invasion and internal violence, and ex¬ 
tends to the citizens of each state protection in the others. 134 U. 8. 
7 31. 


Institutional Self-Government 

Mr. Lieber, in his book on Civil Liberty and Self-Govern¬ 
ment, has probably best described this form of government. 
He says: 

By institutional self-government is meant that popular govern¬ 
ment which consists in a great organism of institutions or a union 
of harmonizing systems of laws instinct with self-government. It is 
essentially of a co-operative character, and thus the opposite to cen¬ 
tralism. It is articulated liberty, and thus the opposite to an in- 
articulated government of the majority. It is of an inter-guarantee¬ 
ing, and, consequently, interlimiting character, and in this aspect the 
negation of absolutism. It is a self-evolving and genetic nature, and 
thus is contra-distinguished from governments founded on extra-popu¬ 
lar principles, such as divine right. Finally, institutional self-gov¬ 
ernment is, in the opinion of our race, and according to our experi¬ 
ence, the only practical • self-government, or self-government carried 
out in the realities of life, and is thus the opposite of a vague or 
theoretical liberty, which proclaims abstractions, but, in reality, can¬ 
not disentangle itself from the despotism of one part over another, 
however permanent or changing the ruling part may be. 

Institutional self-government is the political embodiment of self- 
reliance and mutual acknowledgment of self-rule. It is in this view 
the political realization of equality. 

Institutional self-government is the only self-government which 
makes it possible to unite seZ/-government and self -government. 

According to the Anglican view, institutional self-government con¬ 
sists in the fact that all the elementary parts of the government, as 
well as the highest and most powerful branches, consist in real in¬ 
stitutions, with all the attributes which have been ascribed to an 
institution in the highest sense of the term. It consists, farther, in 


140 


Government, Institutional 


the unstinted freedom and fair protection which are granted to in¬ 
stitutions of all sorts, commercial, religious, cultural, scientific, chari¬ 
table, and industrial, to germinate and to grow —provided they are 
moral ancl do not invade the equal rights of others. It receives its 
aliment from a pervading spirit of self-reliance and self-respect—the 
real afflatus of liberty. 

It does not only require that the main functions of the govern¬ 
ment—the legislative, the judicial, and the executive—be clearly di¬ 
vided, but also that the legislature and the judiciary be bona fide in¬ 
stitutions. The first French constituent assembly pronounced the 
separation of the three powers, and was obliged to do so, since it in¬ 
tended to demolish the absolutism which had grown up under the 
bourbons; but so long as there existed an absolute power, no matter 
of what name, that could dictate, liberty was not yet obtained. In¬ 
deed, it may be said that an efficient division of power cannot exist, 
unless the legislature and the judiciary form real institutions, in our 
sense of the term. Lieber's Civil Liberty a?id Self-Government, 319-20. 

Self-government, to be of a penetrative character, requires the in¬ 
stitutional self-government of the county or district; it requires that 
everything which, without general inconvenience, can be left to the 
circle to which it belongs, be thus left to its own management; it 
consists in the presenting grand jury, in the petty jury, in the fact 
that much which is called on the European continent the administra¬ 
tive branch be left to the people. It requires, in one word, all the 
local appliances of government which are termed local self-govern¬ 
ment ; and Niebuhr says that British liberty depends at least as much 
on these as on parliament, and in contradistinction to them he calls 
the governments of the continent Staats-Regierungen, (state govern¬ 
ments, meaning governments in which all detail is directed by the 
general and supreme power). Lieber's Civil Liberty and Self-Gov¬ 
ernment, 321. 

The words of Mr. Everett are doubtless true, that “the French, 
though excelling all other nations of the world in the art of com¬ 
municating for temporary purposes with savage tribes, seem, still 
more than the Spaniards, to be destitute of the august skill required 
to found new states. I do not know that there is such a thing in the 
world as a colony of France growing up into a prosperous common¬ 
wealth. A half a million of French peasants in Lower Canada, 
tenaciously brought from Normiandy two centuries ago, and a third 
part of that number of planters of French descent in Louisiana, are 
all that is left to bear witness to the amazing fact that not a century 
ago France was the mistress of the better half of North America.” 
Are they succeeding in establishing a vigorous colony in Algeria? It 
seems not; and the question presents itself, what is the reason of this 
inability of so intelligent a nation as the French to establish flourish¬ 
ing colonies? I believe that the chief reason is this: The French are 
thoroughly wedded to centralism, and eminently uninstitutional in 
their character. They want government to do everything for them. 
They are peculiarly destitute of self-reliance in all public and com¬ 
munal matters. They do not know self-government; they cannot im- 


Government, Institutional 


141 


part it. . Every Frenchman’s mental home is Paris, even while re¬ 
siding in France; as to a colonial life, he always considers it a mere 
exile. 

The assimilative power and transmissible character of the insti¬ 
tution are closely connected with its tenacity and formative character. 
Few things in all history seem to me more striking, and, if analyzed, 
more instructive, than the fact that Great Britain, though monarchial 
in name, and aristocratic in many points, plants freedom wherever 
she sends colonies, and becomes thus the great mother of republics; 
while France, with all her domestic tendencies, her worship of equality 
and repeated proclamations of a republic, has never approached nearer 
than setting aside a ruling dynasty; her colonies are, politically 
speaking, barren dependencies. They do not bloom into empires. The 
colonies of Spain also teach a grave lesson on this subject. Liebefs 
Civil Liberty and Self-Government, 330-1. 

The power by which institutional self-government assimilates va¬ 
rious and originately discordant elements is forcibly shown in the 
United States, w 7 here every year several hundred thousand emigrants 
arrive from countries under different governments. The institutions 
of our country soon absorb and assimilate them as integral parts of 
our polity. In no other political system of which liberty forms any 
part, could this be done. Imagine an influx of foreigners in a coun¬ 
try like France when she called herself republican, and the danger 
of so large a body of foreigners would soon be perceived. It would be 
an evil day for the United States and for the emigrants, if our insti¬ 
tutions were to be broken up and popular absolutism erected on the 
ruins of our institutional liberty. We, of all nations on earth, are 
most interested in the vigorous life and healthful development of in¬ 
stitutional self-government. No nation has as much reason to shun 
inarticulated equality and barren centralization as ourselves. Lieber's 
Civil Liberty and Self-Government, 332. 

Liberty is a thing that grows, and institutions are its very garden 
beds. There is no liberty which as a national blessing has leaped into 
existence in full armor like Minerva from the head of Jove. Liberty 
is crescive in its nature. It takes time, and is difficult, and like all 
noble things. “Things noble are hard,” was the favorite saying of 
Socrates, and liberty is the noblest of all things. It must be defended, 
like a mere capital on a column; it must pervade the whole body. If 
the Emperor of China were to promulgate one of the charters of our 
states for his empire, it would be like hanging a gold collar around 
the neck of a camel. 

Liberty must grow up with the whole system; therefore we must 
begin at once, where it does not exist, knowing that it will take 
time for perfection, and not indeed discard it, because it has not yet 
been commenced. That would be like giving up the preparation of 
a meal, because it has not been commenced in time. Let institutions 
grow, and sow them at once. 

We see, then, how unphilosophical were the words of the present 
Emperor of the French to the assembled bodies of state in February, 
1853, when he said: “Liberty has never aided in founding a durable 
edifice; liberty crowns it when it has been consolidated by time.” 


142 


Government, Institutional 


History denies it; political philosophy and common sense alike 
contradict it. Liberty may be planted where despotism has reigned, 
but it can be done only by much undoing, and breaking down; by a 
great deal of rough ploughing. We cannot prepare a people for liberty 
by centralized despotism, any more than we can prepare for light by 
destroying the means of vision. Nowhere can liberty develop itself 
out of despotism. It can only chronologically follow the rule of ab¬ 
solutism; and if it does so, it must begin with eliminating its an¬ 
tagonistic government. Every return to concentrated despotism, 
therefore, creates an additional necessity of revolution, and throws 
an increased difficulty in the way of obtaining freedom. Lieber's Civil 
Liberty and Self-Government, 335. 

The scholar of liberty knows that important as systems and in¬ 
stitutions, principles and bills of rights are, they still demand rational 
and moral beings, for which they are intended, like the revelation 
itself, which is for conscious man alone. Everything in this world 
has its dangers. In this lies the fearful responsibility of demagogues. 
“Take power, bear down limitation,” is their call on the people, as it 
was the call of the courtiers on Louis XIV. Their advice of political 
intemperance resembles that which is given on the tomb of Sardan- 
apalus, regarding bodily intemperance: “Eat, drink and lust; the 
rest is nothing.” 

We must the more energetically cling to our institutional govern¬ 
ment, and the more attentively avoid extremes. At the same time, 
the question is fair whether other systems avoid the danger or do 
not substitute greater evils for it; and, lastly, we must in this, as in 
all other cases, while honestly endeavoring to remedy or prevent evil, 
have an eye to the whole and see which yields the fairest results. 
Nothing, moreover, is far more dangerous than to take single brilliant 
facts as representatives of systems. They prove general soundness 
as little brilliant deeds necessarily prove general morality. 

It is these dangers that give so great a value to constitutions, if 
conceived in the spirit of liberty. The office of a good constitution, 
beside that of pronouncing and guaranteeing the rights of the citizen, 
is that, as a fundamental law of the state, it so defines and limits the 
chief powers, that, each moving in its own orb, without jostling the 
others, it prevents jarring and grants harmonious protection to all 
the minor powers of the state. Lieber's Civil Liberty and Self-Gov¬ 
ernment, 338-9. 

We find, among the characteristic distinctions between modern 
history and ancient, the longevity of modern states contemporaneous 
progress of wealth or culture and civil liberty, and the national state 
as contradistinguished from the ancient city-state, the only state ot 
antiquity in which liberty existed. These are not merely facts which 
happen to present themselves to the historian, but they are conditions 
upon which it is the modern problem to develop liberty, because 
they are requisites for modern civilization, and civilization is the com¬ 
prehensive aim of all humanity. Lieber's Civil Liberty and Self- 
Government, 360. 

These differences between antiquity and modern times, all of which 
are more or less connected with Christianity and the institution, are: 


Government, Trophies and Triumphs of 143 

1. That in antiquity only one nation flourished at a time. The 
course of history, therefore, flows in a narrow channel, and the his¬ 
torian can easily arrange universal ancient history. In modern pe¬ 
riods, many nations flourish at the same time, and their history re¬ 
sembles the broad Atlantic, on which they all freely meet. 

2. Ancient states are short-lived; modern states have a greater 
tenacity of life. 

3. Ancient states, when once declining, were irretrievably lost. 
Their history is that of rising curve, with its maximum and declen¬ 
sion. Modern states have frequently shown a recuperative power. 
Compare present England with that of Charles II, France as it is 
with the times of Louis XV. 

4. Ancient liberty and wealth were incompatible, at least for 
any length of time; modern nations may grow freer while they are 
growing wealthy. 

5. Ancient liberty dwelt in city-states only; modern liberty re¬ 
quires enlarged societies—nations. 

6. Ancient liberty demanded disregard of individual liberty; 
modern liberty is founded upon it. 

7. The ancients had no international law. (Nor have the Asiatics 
now. The incipiency of international law is, indeed, visible with all 
tribes, for they are men. The Romans sent heralds to declare war, 
and the Greek, advised to poison his arrows, declines doing so, “for,” 
Homer makes him say, “I fear the gods will punish me”.) Liefer's 
Civil Liberty and Self-Government, 360, note. 

Our destinies tliffer from that of brief and brilliant Greece. Let 
us derive all the benefit from Grecian culture and civilization—from 
that chosen nation, whose intellectuality and aesthetics, with Chris¬ 
tian morality, Roman legality, and Teutonic individuality and inde¬ 
pendence, from the main elements of the great phenomenon we des¬ 
ignate by the term modern civilization, without adopting her evils 
and errors, even as we adopt her sculpture without that religion whose 
very errors contributed to produce it. Lieber's Civil Liberty and Self- 
Government, 362. 

The Trophies and Triumphs of American Government 

Hon. John Randolph Tucker, in an address to the American 
Bar Association, thus beautifully describes the achievements 
of the American Republic and Constitutional Government: 

The night of the middle ages was far spent. The day of modern 
history was at dawn. 

In one century after America was discovered, the reformation had 
shattered the veneration, with which the human mind viewed the 
claims of traditional faith. Right or wrong, it was rebellion against 
all kinds of tyranny over the minds of men. For when the most ven¬ 
erable institution in Europe was called in question, and its claim re¬ 
jected, what other existing institution of philosophy or government 
could claim immunity from the challenge of free thought and un¬ 
shackled speculation? 


144 


Government, Trophies and Triumphs of 


Just one hundred and fifteen years after America was found, a 
band of brave and sturdy colonists laid the corner-stone of the old 
Dominion, and planted the seeds of our peculiar civilization on the 
banks of our Virginia Nile. The other celebrated planting of the 
Pilgrims at Plymouth Rock came in 1620. These infant types of our 
polity have left their impress everywhere; and “this gem of the 
prairie, this pearl of the lake,” is a child of the old Virginia, whose 
ragged soldiers from her Shenandoah Valley under General George 
Rogers Clark, the young Hannibal of the West, won by toilsome march 
and heroic battle in 1779 this great domain, which she freely shared 
with her confederate sisters. 

What a change since then! What has our Anglo-American race 
done? Nay, what has it not done for liberty and law? 

Give me. pardon for taking a few moments, to group its trophies 
and recall its triumphs! 

1. It has proclaimed, that sovereignty is an Essence, an inalien¬ 
able and indivisible attribute, resident in and belonging only to the 
Body Politic; which is the aggregation of all the human beings com¬ 
posing it, organized by jural consent, express or implied, for the pur¬ 
poses of social life and for united co-operation for the peace and or¬ 
der of society, and for the security of each member in life, liberty, and 
the pursuit of happiness. 

2. It has established from this essential Sovereignty of the peo¬ 
ple there are emanations of its will, expressed in a written Constitu¬ 
tion or otherwise, by which sovereign powers are delegated to one or 
more governments and to the several departments thereof; that the 
people, as the Sovereignty, have original powers, which governments 
may only exercise by delegation; and that all acts or authority of 
governments, or any department thereof, not consistent with the Con¬ 
stitution, are wholly null and void. 

3. It has vested in the judiciary the paramount function of de¬ 
ciding, whether any act or authority of government or of any depart¬ 
ment there is or is not consistent with the Constitution, and upon a 
negative decision, to adjudge the same to be null and void, and by 
judicial process to make it of no effect. 

4. It has made the feudal tenure of land, allodial ownership; has 
stricken off shackles from the alienation of land, and destroyed the 
perpetuity of entails, as a badge of caste in the ownership of property; 
it has made succession a legal conclusion, based on the natural affec¬ 
tions of man, and not on the right of his feudal master; it has thus 
discarded primogeniture, all distinctions of sex and made equality of 
law, for succession, because it is the instinct of human love. 

5. It has given equality of right to each human unit to use his 
faculties, which are of Divine gift, for the defense of his life and 
liberty and for the promotion of his happiness; denying to every one 
any special privilege, and imposing on no one a burden, not borne 
equally by all. The personal energy of each, in the use of his God- 
given powers, must be neither fostered nor foiled by a pretended pa¬ 
ternalism, which spoils whom it pets, and discards only whom it 
would injure or destroy. 


Government, American, Republican in Form 145 

6. It has exorcised Caste; regulated domestic relations so as to 
conserve right rather than uphold traditional authority; and has 
opened the avenues to the temples of knowledge for all classes and 
races. 

7. It has declared, in the memorable words of the act for religious 
freedom drawn by Jefferson, and passed by Virginia, December 16th, 
1785, “that all men shall be free to profess, and by argument to main¬ 
tain, their opinions in matters of religion, and that the same shall 
in no wise diminish, enlarge, or affect their civil capacities;” golden 
words, which might well find place at the threshold of every public 
edifice, and on the doorposts of every home in this land. 

8. It has enlarged the jurisdiction of right, and of remedy for 
wrongs, by making judicial procedure more simple, its pleadings more 
candid and explicit, and by wedding and not divorcing in any one 
procedure the principles, legal and equitable, applicable to the sub¬ 
ject of litigation. 

9. It has made the judicial relations between nations, not a con¬ 
flict for the aggrandizement of wealth or of power, but an arena for 
the decision of the right and for the prevention of wrong. And our 
own country, with the support and influence of the legal profession, 
and notably of my venerable predecessor, David Dudley Field, has 
done much to bring all questions of contest between nations to the 
award of reason, through the arbitrament of international jurists, 
rather than to the bloody assize of war, where brute force too often 
tramples on right, and wrong may be declared victor in the ordeal of 
battle, because supported by the heaviest battalions. 

10. Finally, it has ordained a Federative System of Government, 
a Republic of Republics, in which power is wedded to Right, by leav¬ 
ing to each localism the exclusive power to control its local right, 
and by giving to the Common Government of all, the combined power 
of all, to regulate and direct the common defense and general welfare 
of all; and thus has furnished to mankind a model Constitutional 
Organism, wherein Government is potential for a People’s defense, 
happiness and progressive Civilization, and yet impotent to destroy 
their freedom; where Government has the minimum of Power, and 
man the maximum of Liberty, consistent with the order, peace and 
safety of the People. John Randolph Tucker, in Report of American 
Bar Association, Vol. 16, 208-9-10-11. 

American Government Republican in Form 

Mr. Madison said on this subject: 

The first question that offers itself is, whether the general form 
and aspect of the government be strictly republican. It is evident 
that no other form would be reconcilable with the genius of the peo¬ 
ple of America; with the fundamental principles of the Revolution; 
or with that honorable determination which animates every votary 
of freedom, to rest all our political experiments on the capacity of 
mankind for self-government. If the plan of the convention, there¬ 
fore, be found to depart from the republican character, its advocates 
must abandon it as no longer defensible. 


146 Government of TJ. S. Distinguished from Others 

What, then, are the distinctive characters of the republican form? 
Were an answer to this question to be sought, not by recurring to 
principles, but in the application of the term by political writers, to 
the constitution of different States, no satisfactory one would ever 
be found. Holland, in which no particle of the supreme authority is 
derived from the people, has passed almost universally under the de¬ 
nomination of a republic. The same title has been bestowed on 
Venice, where absolute power over the great body of the people is ex¬ 
ercised, in the most absolute manner, by a small body of hereditary 
nobles. Poland, which is a mixture of aristocracy and of monarchy 
in their worst forms, has been dignified with the same appellation. 
The government of England, which has one' republican branch only, 
combined with an hereditary aristocracy and monarchy, has, with 
equal impropriety, been frequently placed on the list of republics. 
These examples, which are nearly as dissimilar to each other as to 
a genuine republic, show the extreme inaccuracy with which the term 
has been used in political disquisitions. Madison in The Federalist, 
Vol. f, Number XXXIX. 

The Government of the United States of America 
Distinguished From Other Governments 

It is a government of laws and not of men. Other govern¬ 
ments are of men and not of laws. It exists, is chartered and 
limited by a written constitution. Other governments make 
and limit their unwritten constitutions. Its rights and powers 
are prescribed and limited by the people through a written 
constitution. Other governments confer and limit through 
unwritten constitutions all the rights and powers which the 
people possess. It possesses and can exercise only such rights 
and powers which the people have conferred on it. Other 
governments possess and exercise all rights and powers except 
those which they have conferred on the people. It guaran¬ 
tees to protect every citizen in the enjoyment of all his rights, 
privileges and immunities, both against the aggressions of the 
government itself and against those of other citizens. No 
other government guarantees any such protection to its citi¬ 
zens. 

Its officers from the president, lawmakers and judges down 
to the lowest are agents of the government and servants of 
the people. The officers of other governments are the govern¬ 
ments themselves and rulers of the people. In it no officer, 
high or low, is above the law; they are all amenable to the 
law. In other governments, the will of certain of its officers 
is the only law and they are not amenable, of course, to them¬ 
selves; but the subjects are amenable to the so-called law. Its 
power is partitioned, and each part acts as a check upon, or 


Government of U. S. Distinguished from Others 147 

balance against, another part, and thus provides against 
monarchy, oligarchy and centralization. It guarantees pro¬ 
tection to each citizen against the aggression of any or all the 
other citizens, and thus provides against anarchy. Other gov¬ 
ernments consolidate all power into one man or body of men, 
and thus oppress all others, and guarantee no one except 
the rulers against the aggressions either of the government or 
the other people; and hence rebellion or anarchy or both, are 
thus encouraged,—if not necessitated,—to obtain a new deal 
of rulers who are to soon be oppressive and tyrannical. 

Its fundamental principles are modeled after the laws of 
nature, first announced by Sir Isaac Newton. Each part is 
aqted upon by centripetal and centrifugal forces which cause 
each part to move in its own respective orbit, and never to 
collide with any other part. If other governments were mod¬ 
eled after any law of nature, they were those announced by 
Darwin, the survival of the fittest: that might makes right. 
(It should be said however, that most of these governments 
were modeled before Darwin was born.) • 

It is in its structure partly local-self, partly federal, partly 
national and partly international. The local self-government 
is left or reserved to the several states, counties, parishes, 
cities, towns and other districts. Its federal and national gov¬ 
ernment is delegated to the president, congress and judicial 
departments of the Federal Government by the Constitution. 
The international, that is the treaty-making power, is dele¬ 
gated to the president and the senate. The structure is such 
that each of these parts may act independently of the other, 
and yet each checks and balances the other. 

No other government is so constructed. In them all power 
to regulate each of these parts or partitions of government is 
either centered in one man or body of men, who parcel out 
the power or men who are to control all. No part can act in¬ 
dependent of the other, and no one has any check or balance 
against another. 

In it minorities have representation by and through the 
judicial department. It is the function of this department to 
see that each and every man has and enjoys his rights, privi¬ 
leges and immunities under the Constitution and the law as 
against the government itself and the majorities. No other 
government so protects the minorities against the govern¬ 
ment itself or the majorities. 


148 Government of U. S. Distinguished from Others 

Paradoxical as it may seem or sound, it is both the youngest 
and oldest of the really great governments of the world. 

Its wonderful capacity to aid in the development of a new 
country; in the accumulation and diffusion of wealth; in the 
equality of the rights and liberties of the citizen; in its ability 
to defend itself and its citizens against aggressions, foreign 
or domestic; in its ability to do good for the whole world, in 
having its principles of liberty and justice diffused and de¬ 
veloped in the old and new world, has been the wonder and 
astonishment of the people of other governments, and the 
pride and glory of its own. It has no parallel among the na¬ 
tions of the world in the development and security of personal 
liberty and freedom or of wealth or property and the diffusion 
thereof among its people. It was once the borrower of most 
all of the old European nations: it is now the large creditor 
of most all. If its example* is to be worth much to the old 
world, it will be due to the recognition of the facts which dis¬ 
tinguish it from other governments. 

There are two features of Government, which distinguish 
our Government from all other Republican forms of Govern¬ 
ment: They are best stated in the Federalist, No. 51, as fol¬ 
lows : 

First. In a single republic all the power surrendered by the peo¬ 
ple is submitted to the administration of a single government; and 
the usurpations are guarded against by a division of the government 
into distinct and separate departments. In the compound Republic 
of America, the power surrendered by the people is first divided be¬ 
tween two distinct governments, and then the portion allotted to each 
subdivided among distinct and separate departments. Hence a double 
security arises to the rights of the people. The different governments 
will control each other, at the same time that each will be controlled 
by itself. 

Second. It is of great importance in a republic not only to guard 
the society against the oppression of its rulers, but to guard one part 
of the society against the injustice of the other part. Different in¬ 
terests necessarily exist in different classes of citizens. If a ma¬ 
jority be united by a common interest, the rights of the minority will 
be insecure. There are but two methods of providing against this 
evil; the one by creating a will in the community independent of the 
majority—that is, of the society itself; the other, by comprehending 
in the society so many separate descriptions of citizens as will ren¬ 
der an unjust combination of a majority of the whole very improba¬ 
ble if not impracticable. The first method prevails in all govern¬ 
ments possessing an hereditary or self-appointed authority. This at 
best is but a precarious security; because a power independent of the 
society may as well espouse the unjust views of the major as the 
rightful interests of the minor party, and may possibly be turned 


Government of U. S. Distinguished from Others 


149 


against both parties. The second method will be exemplified in the 
federal republic of the United States. Whilst all authority in it will 
be derived from and dependent on the society, the society itself will 
be broken into so many parts, interests, and classes of citizens, that 
the rights of individuals, or of the minority, will be in little danger 
from interested combinations of the majority. (The Federalist, No. 
11.) Foster on the Constitution, (note) p. 278. 

Dual Form of United States Government 

The Supreme Court, in construing the White Slave Law, 
said: 

Our dual form of government has its perplexities. State and Na¬ 
tion having different spheres of jurisdiction, as we have said, but it 
must be kept in mind that we are one people; and the powers re¬ 
served to the States and those conferred on the Nation are adapted 
to be exercised, whether independently or concurrently, to promote 
the general welfare, material and moral. This is the effect of the de¬ 
cisions, and surely if the facility of interstate transportation can be 
taken away from the demoralization of lotteries, the debasement of 
obscene literature, the contagion of diseased cattle or persons, the 
impurity of foods and drugs, the like facility can be taken away from 
the systematic enticement to and the enslavement in prostitution and 
debauchery of women, and, more insistently, of girls. 

This is the aim of the law expressed in broad generalization; and 
motives are made of determining consequence. Motives executed by 
actions may make it the concern of Government to exert its powers. 
Right purpose and fair trading need no restrictive regulation, but 
let them be transgressed and penalties and prohibitions must be ap¬ 
plied. 227 U. 8., 322. 

Nature of United States Government Dual or Compound 

The two governments, State and National, each exercise their func¬ 
tions side by side, with a far more extensive range of action in the 
former than in the latter; but when they do come into conflict the 
former has to yield. It is still true in substance, as said by Jeffer¬ 
son, that they constitute “co-ordinate departments of one single and 
integral whole;” the former having the power of legislation and ad¬ 
ministration in affairs which concern their own citizens alone, the 
latter over whatever concerns foreigners or citizens of other States. 
And the usual simile is that of the solar system, with a comparison of 
the United States to the sun and of the States to the planets, each 
moving in its respective orbit, a deviation from which by any, if un¬ 
checked, would bring destruction upon the whole. 

Within the sphere of the powers vested in them, the United States 
are supreme. Every State law or official action in conflict with an act 
passed in execution of a power of the United States is void. Foster 
on the Constitution, Vol. 1, pp. 271-2. 

American Form of Government 

“What do you think of our institutions?” is the question addressed 
to the European traveller in the United States by every chance ac¬ 
quaintance. The traveller finds the question natural, for if he be an 


150 


Government, Sovereign Towers of 


observant man his own mind is full of these institutions. But ha 
asks himself why it should be in America only that he is so in¬ 
terrogated. In England one does not inquire from foreigners, nor 
from even Americans their views on the English laws and govern¬ 
ment; nor does the Englishman on the Continent find Frenchmen 
and Italians anxious to have their judgment on their politics. Pres¬ 
ently the reason of the difference appears. The institutions of the 
United States are deemed by inhabitants and admitted by strangers 
to be a matter or more general interest than those of the not less fa¬ 
mous nations of the Old World. They are, or are supposed to be, in¬ 
stitutions of a new type. They form, or are supposed to form, a sym¬ 
metrical whole, capable of being studied and judged all together more 
profitably than the less perfectly harmonized institutions of older 
countries. They represent an experiment in the rule of the multitude, 
tried on the scale unprecedentedly vast, and the results of which every 
one is concerned to watch. And yet they are something more than 
an experiment, for they are believed to disclose and display the type 
of institutions towards which, as by a law of fate, the rest of civil¬ 
ized mankind are forced to move, some with swifter, other with 
slower, but all with unresting feet. Bryce's American Commomcealth , 
Vol. I, 1. 

There are three main things that one wishes to know about a na¬ 
tional commonwealth, viz, its framework, and constitutional machin¬ 
ery, the methods by which it is worked, the forces 'which move it and 
direct its course. Bryce's American Commonwealth, Vol. I, 5. 

America is a Commonwealth of commonwealths, a Republic of re¬ 
publics, a State which, while one, is nevertheless composed of other 
States, even more essential to its existence than it is to theirs. Bryce's 
American Commonwealth, Vol. 1 , 12. 

The American States are now all inside the Union, and have be¬ 
come subordinate to it. Yet the Union is more than an aggregate 
of States, and the States are more than parts of the Union. It might 
be destroyed, and they, adding a few further attributes of power to 
those they now possess, might survive as independent self-governing 
communities. 

This is the cause of that immense complexity which startles and 
at first bewilders the student of American constitutions, a complexity 
which makes American history and current American politics so dif¬ 
ficult to the European who finds in them phenomena to which his 
own' experience supplies no parallel. Bryce's American Common¬ 
wealth, Vol. I, Uf. 

Sovereign Powers of the United States Government 

Mr. David Dudley Field, in an address prepared at the 
request of the World’s Congress of Jurisprudence, and pub¬ 
lished in the American Law Review, XXVII, p. 641, said: 

We began with asserting the sovereignty of the people. This was 
done by the Declaration of Independence in 1776. ... In our 

country this supreme power is divided between the Union and the 


Government, Sovereign Powers of 151 

States, but so much of it as has been given to the former by the 
latter. The result is, that Congress is not sovereign, nor is the Presi¬ 
dent sovereign, nor is the Judiciary sovereign; nor, indeed, are all 
three combined sovereign. They may exercise their part of the sover¬ 
eign power, but it is only by delegation that they exercise it at all. 
On the other hand, the reserved powers are all with the separate 
States (or the people thereof), so that we have in fact a divided sover¬ 
eignty, but none the less is it true, that sovereignty in this country 
resides with the people, partly in all the States united, and partly in 
the several States—“ E pluribus unnm .” See Dillon's Lectures. The 
Laws ancl Jurisprudence of England and America, 352, footnote. 

Mr. Dillon, in commenting on this, says: 

The United States have placed their constitution beyond the reach 
of executive and legislative power. The President may act and the 
Congress may act, but the judiciary may decide after all, whether the 
act is authorized by the constitution. Never before in any constitu¬ 
tional government was the organic law put under the guardianship of 
the judiciary. This is a feature purely American, and of value in¬ 
calculable for the protection of individual rights. . . . 

“In the category of these individual rights I conceive that the 
greatest achievement ever made in the cause of human progress is the 
total and final separation of the State from the Church. If we had 
nothing else to boast of, we could claim with justice that first among 
the nations we of this country made it an article of organic law that 
the relations between man and his maker were a private concern 
into which other men had no right to intrude.'". . . Besides this 

great act of deliverance, we have emancipated woman from the domi¬ 
nation of her husband; we have freed the honest debtor from the 
possibility of passing his life in prison; we have rendered it impos¬ 
sible for legislation to make that act a crime which was not a crime 
when it was committed; we have forbidden the States to impair the 
obligation of a contract between man and man; we have proclaimed 
from sea to sea that all men are created equal in rights, and that 
among these rights are the rights of life, liberty, and the pursuit of 
happiness; we have imbedded in the fundamental law of the land as 
principles inviolable and eternal, that no man can be deprived of 
these rights without due process of law, and that all are entitled to 
the equal protection of the laws.” The Laws and Jurisprudence of 
England and America, 353. 

Contrast these rights and liberties under our laws with those 
of other countries. Judge Dillon thus compares them with 
others in the early days of our Constitutional Government: 

In many of the countries of the Old World the landless poor are 
the natural enemies of the government. Here, every proprietor, how¬ 
ever small, is the natural ally of government and of law. There may 
be some reason for the various forms of socialism, communism, an¬ 
archism, among the oppressed peoples of the Old World. They are the 
unreasoning and desperate remedies of caste, and hunger, and despair. 


152 


Government, Colo?iial Origin of U. S. 


But here, and among us, such ideas are baneful exotics, which have 
taken deep root, and attract little notice except when their wild or 
bad adherents seek to propagate them by illegal violence or murder. 

Sydney Smith drew this graphic picture of the condition of the 
English laws, on the enumerated subjects, in 1803,—that is, about 
fifteen years after our government was established: “The Catholics 
were not emancipated. The Corporation and Test Acts were repealed. 
The game laws were horribly oppressive. For every ten pheasants 
which fluttered in the wood, one English peasant was rotting in jail. 
Steel traps and spring guns were set all over the country; prisoners 
tried for their lives could not have counsel. Lord Eldon and the 
Court of Chancery pressed heavily on mankind. Libel was punished 
by the most cruel and vindictive imprisonments. The laws of debt 
and conspiracy were little understood. Not a murmur against any 
abuse was permitted; to say a word against the suitorcide delays of 
the Court of Chancery, or the cruel punishments of the game laws, 
or any abuse which a rich man inflicted and a poor man suffered was 
treason against the plousiocracy, and was bitterly and steadily re¬ 
sented.” Again he said: “The abuses of the Court of Chancery have 
been the curse of England for centuries. For twenty-five years did 
Lord Eldon sit in the court surrounded by misery and sorrow, which 
he never held up a finger to alleviate. The widow and orphan cried 
to him as vainly as the town-crier cries when he offers a small re¬ 
ward for a full purse; the bankrupt of the court became the lunatic 
of the court; estates mouldered away and mansions fell down, but 
the fees came in and all was well. But in an instant fin 1832) the 
iron mace of Brougham shivered to atoms this house of fraud and 
delay.” If this picture is too highly colored, its essential features are 
correct; but we are glad to know that in all of these respects the 
English law has greatly improved, mostly within the last sixty years. 
The Laws and Jurisprudence of England and America, Lectures of 
Judge Dillon, 351 -S. 

Colonial Origin of the United States Government 

Mr. Calhoun thus states the history of its origin: 

It is known to all, in any degree familiar with our history, that 
the region embraced by the original States of the Union appertained 
to the crown of Great Britain, at the time of its colonization; and that 
different portions of it were granted to certain companies or indi¬ 
viduals, for the purpose of settlement and colonization. It is also 
known, that the thirteen colonies, which afterwards declared their 
independence, were established under charters which, while they 
left the sovereignty in the crown, and reserved the general power of 
supervision to the parent country, secured to the several colonies 
popular representation in their respective governments, or in one 
branch, at least, of their legislatures,—'with the general rights of 
British subjects. Although the colonies had no political connection 
with each other, except as dependent provinces of the same crown— 
they were closely bound together by the ties of a common origin, 
identity of language, similarity of religion, laws, customs, manners, 


Government of U. S., Ilow Ordained 153 

commercial and social intercourse,—and by a sense of common dan¬ 
ger,—exposed, as they were, to the incursions of a savage foe, act¬ 
ing under the influence of a powerful and hostile nation. 

In this embryo state of our political existence, are to be found 
all the elements which subsequently led to the formation of our pe¬ 
culiar system of governments. The revolution, as it is called, pro¬ 
duced no other changes than those which were necessarily caused by 
the declaration of independence. These were, indeed, very important. 
Its first and necessary effect was, to cut the cord which had bound the 
colonies to the parent country,—to extinguish all the authority of 
the latter,—and, by consequence, to convert them into thirteen inde¬ 
pendent and sovereign States. 1 Calhoun's Works, pp. 188-9. 

They, in the course'of a few years, by entering into articles of 
confederation and perpetual union, established and made more per¬ 
fect the union which had been informally constituted, in consequence 
of the exigencies growing out of the contest with a powerful enemy. 
But experience soon proved that the confederacy was wholly inade¬ 
quate to effect the objects for which it was formed. It was then, 
and not until then, that the causes which had their origin in our 
embryo state, and which had, thus far, led to such happy results, 
fully developed themselves. The failure of the confederacy was so 
glaring, as to make it appear to all, that something must be done to 
meet the exigencies of the occasion:—and the great question which 
presented itself to all was:—what should, or could be done? 

To dissolve the Union was too abhorrent to be named. In addi¬ 
tion to the causes which had connected them by such strong cords of 
affection while colonies, there were superadded others, still more 
powerful,—resulting from the common dangers to which they had 
been exposed, and the common glory they had acquired, in passing 
successfully through the war of the revolution. Besides, all saw 
that the hope of reaping the rich rewards of their successful resist¬ 
ance to the encroachment of the parent country, depended on pre¬ 
serving the Union. 

But, if disunion was out of the question, consolidation was not 
less repugnant to their feelings and opinions. 1 Calhoun's Works , 
pp. 192-3. 

The United States Government—How Ordained 

In 1 Wheat. 304, 324-31, Judge Story said that “the Constitution of 
the United States was ordained and established, not by the states in 
their 'sovereign capacities, but emphatically, as the preamble of the 
Constitution declares, by the people of the United States.” 

In 4 Wheat. 316, 403, Judge Marshall said: “The government pro¬ 
ceeds directly from the people; is ‘ordained and established’ in the 
name of the people; and is declared to be ordained, ‘in order to form 
a more perfect union, establish justice, ensure domestic tranquillity, 
and secure the blessings of liberty to themselves and their posterity.’ 
The assent of the states, in their sovereign capacity, is implied in 
calling a Convention, and thus submitting that instrument to the peo¬ 
ple. But the people were at perfect liberty to accept or reject it; and 
their act was final. It required not the affirmance, and could not be 


154 


Government, Ancient, By Whom Created 


negatived, by the state governments. The Constitution, when thus 
adopted, was of complete obligation, and bound the state sovereignties. 

. . . The government of the Union, then, is, emphatically, and truly, 

a government of the people. In form and substance it emanates from 
them. Its powers are granted by them, and are to be exercised di¬ 
rectly on them and for their benefit. This Government is acknowl¬ 
edged by all to be one of enumerated powers. . . . It is the Gov¬ 
ernment of all; its powers are delegated by all; it represents all, and 
acts for all.” 

Although the states are constituent parts of the United States, the 
Government rests upon the authority of the people of the United 
States, and not on that of the states. Judge Marshall in 6 Wheat. 
264, 413, said: “That the United States form for many, and for most 
important purposes, a single nation, has not yet been denied. In 
war, we are one people. In making peace, we are one people. In all 
commercial regulations, we are one and the same people. In many 
other respects, the American people are one; and the government 
which is alone capable of controlling and managing their interests in 
all these respects is the government of the Union. It is their govern¬ 
ment, and in that character they have no other. America has chosen 
to be, in many respects and to many purposes, a nation; and for these 
purposes her government is complete; to all these objects it is com¬ 
petent. The people have declared that in the exercise of all powers 
given for those objects, it is supreme. It can, then, in effecting these 
objects, legitimately control all individuals or governments within 
the American territory.” 

In reference to the doctrine that the Constitution was established 
by and for the states as distinct political organizations, Mr. Webster 
said: “The Constitution itself in its very front refutes that. It de¬ 
clares that it is ordained and established by the People of the United 
States. So far from saying that it is established by the governments 
of the several states, it does not even say that it is established by the 
people of the several states. But it pronounces that it was established 
by the people of the United States in the aggregate. Doubtless, the 
people of the several states, taken collectively, constitute the people 
of the United States. But it is in this their collective capacity, it is as 
all the people of the United States, that they established the Consti¬ 
tution.” 182 U. 8. 376-S. 

Ancient Governments—By Whom Established or Created 

Mr. Madison said of early governments: 

It is not a little remarkable that in every case reported by ancient 
history, in which government has been established with deliberation 
and consent, the task of framing it has not been committed to an as¬ 
sembly of men, but has been performed by some individual citizen of 
pre-eminent wisdom and approved integrity. 

Minos, we learn, was the primitive founder of the government of 
the Crete, as Zaleucus was of that of the Locrians, Theseus first, and 
after him Draco and Solon, instituted the government of Athens. 
Lycurgus was the lawgiver of Sparta. The foundation of the original 


Government of U. 8., a Federal One 155 

government of Rome was laid by Romulus, and the work completed 
by two of his elective successors, Numa and Tullius Hostilius. Madi¬ 
son in The Federalist, Number XXXVIII. 

History informs us, likewise, of the difficulties with which these 
celebrated reformers had to contend, as well as the expedients which 
they were obliged to employ in order to carry their reforms into ef¬ 
fect. Solon, who seems to have indulged a more temporizing policy, 
confessed that he had not given to his countrymen the government best 
suited to their happiness, but most tolerable to their prejudices. And 
Lycurgus, more true to his object, was under the necessity of mixing 
a portion of violence with the authority of superstition, and of se¬ 
curing his final success by a voluntary renunciation, first of his coun¬ 
try, and then of his life. Madison in The Federalist, Number 
XXXVIII. 

Government of the United States a Federal Government 

Mr. Black thus describes the Government: 

The American Union is commonly described as a federal govern¬ 
ment. And political writers and jurists usually speak of the federal 
constitution, the federal courts and jurisdiction, federal powers, the 
federal executive, etc. The use of this term is not made imperative 
by anything in the constitution. The nature of the government is not 
described therein. Nor can its employment settle anything as to the 
nature or powers of the government. But the term expresses the com¬ 
mon understanding as to the kind of government prevailing in our 
country. And it is a correct designation, technically, if taken in its 
true sense. There is, in political science, a substantial difference be¬ 
tween a confederation and a federal government. Black on Constitu¬ 
tional Laws, 27. 

The United States is a federal republic. So also each of the states 
is a republic, and the constitution guarantees to each the continuance 
of republic government. The exact meaning of the phrase will be more 
fully considered in another place. At present it is sufficient to say 
that a republic, as distinguished from a despotism, a monarchy, or 
an oligarchy, is a government wherein the political power is confined 
to and exercised by the people. It is a government “of the people, 
by the people, and for the people.” It implies a practically unre¬ 
stricted suffrage, and the frequent interposition of the people, by 
means of the suffrage, in the public affairs. Black on Constitutional 
Laws, 28. 

The United States Government—Is It Federal Or National? 

In 1827, Mr. Madison wrote Dr. Cooper as follows: 

The mail has furnished me with a copy of your Lectures on Civil 
Government and on the Constitution of the United States. I find in 

them much in which to concur; parts on which I might say non 

liquet; and others from which I should dissent; but in none of which 
interesting views are not presented. What alone I mean to notice, 

is a passage in which you have been misled by the authorities before 


156 


Government of U. 8., a Federal One 


you, and by a misunderstanding of the term “national,” used in the 
early proceedings of the convention of 1787. Both Mr. Yates and Mr. 
Martin brought to the convention predispositions against its object: 
the one from Maryland representing the party of Mr. Chase, opposed 
to Federal restraints on the State legislation; the other from New 
York, the party unwilling to lose the power over trade, through which 
the State levied a tribute on the consumption of its neighbors. Both 
of them left the convention long before it completed its work; and 
appear to have reported in angry terms what they had observed with 
jaundiced eyes. Mr. Martin is said to have recanted at a later day, 
and Mr. Yates to have changed his politics, and joined the party ad¬ 
verse to that which sent him to the convention. 

With respect to the term “national,” as contradistinguished from 
the term “federal,” it was not meant to express the extent of power, 
but the mode of its operation, which was to be, not like the power of 
the old confederation, operating on States, but like that of ordinary 
governments, operating on individuals; and the substitution of 
“United States” for “national,” noted in the journal, was not designed 
to change the meaning of the latter, but to guard against a mistake 
or misrepresentation of what was intended. The term “national” was 
used in the original propositions offered on the part of the Virginia 
deputies, not one of whom attached to it any other meaning than that 
here explained. Mr. Randolph himself, the organ of the deputation 
on the occasion, was a strenuous advocate for the federal quality of 
limited and specified powers; and finally refused to sign the Constitu¬ 
tion because its powers were not sufficiently limited and defined. 3 
Writings of Madison, p. 5)6. 

This is a much disputed question, and one upon which the 
greatest statesmen and constitutional lawyers disagree. 

Mr. Story and his school claim it to be national. Mr. Jef¬ 
ferson and his school claim it to be Federal only. The truth 
lies between the two extremes; both are right, and both are 
wrong. It is both a paradox and a truth to say that it is 
neither national nor federal; it is both national and federal. 
It is partly both, and wholly neither, in the sense contended 
for by the extremist on either side. Mr. Madison, who was 
neither a Republican nor a Federalist, and who was both a 
Republican and a Federalist, and who above all others had 
most to do in framing and moulding the union, is used as au¬ 
thority by both extremes. He says it cannot be national in 
the sense contended for, because it is conceded that it does 
not and never did possess all of the powers necessary to a com¬ 
plete national government; that its jurisdiction extends only 
to a few enumerated and implied powers, the residuary powers 
remaining in the states. It requires both the states and the 
Union to constitute a complete government. The states did 
and could exist without the Union, but the Union could not 


Government of U. 8., a Federal One 


157 


exist without the states. The states, so far as the states gov¬ 
ernments are concerned, are independent, each of the other; 
but so far as the Union is concerned, they are not independ¬ 
ent, but dependent because they have granted a part of their 
powers to a common grantee, and have agreed as states or 
grantors, not to exercise certain powers; but that those pow¬ 
ers should be exercised by the common grantee or its agents, 
and the real sovereigns, the body politic of the several states 
have consented and agreed that all such powers should be 
granted, and after they were so granted by the states, the 
deeds and grants were ratified by the people. 

Mr. Madison’s views have been generally accepted; that 
it is not wholly either, that it is partly both. Federalist Nos. 
34 and 40. Mr. Calhoun claimed that this could not be. That 
it was contrary to the nature of things. He, of course, be¬ 
lieved it to be wholly Federal, and gives his proofs thereof. 
See 1 Calhoun’s Works, p. 151, et seq. It is singular that both 
Mr. Madison and Mr. Calhoun rely on the same provisions of 
the Constitution to establish their respective theories. 

The same causes which have tended to the creation of national 
public opinion with definite characteristics have tended to make it 
comprehend more subjects, and tends to make it look to the federal 
government as a means for accomplishing its purposes. This was not 
apparent during the war and the period of reconstruction. It had 
commenced before the war. It is the natural and inevitable drift of 
things. It was greatly stimulated by the success of the movement for 
the abolition of slavery. People are more and more disposed to look 
to the national government. We have in the United States now re¬ 
formers who wish to improve the condition of the farmer, to elevate 
and ameliorate the condition of labor; who wish to regulate transporta¬ 
tion and restrain monopolies; persons who wish to protect lands from 
overflow by an extensive system of levees, and who desire improved 
health regulations; educational reformers, temperance reformers, and 
socialists. There is nothing whatever in the Constitution to warrant 
the national government interfering in many of these matters; and 
yet all of these persons show more and more disposition to look to the 
general government as the agent for the accomplishment of their pur¬ 
pose. Richard M. Venable, in Reports of American Bar Association, 
Vol. 8, 258-9 . 

There is a strong tendency to convert the Constitution into 
a code, or book of ordinances. There are now many reformers, 
who believe that the Constitution should no longer be a grant 
by the States or the people thereof to the United States, and 
limitations upon the powers of both the States arrd United 
States, but that it should be made up of statutes and ordi¬ 
nances prescribing a course of conduct for the people telling 


158 Government of U. S., Is It Federal, Nafl or A League? 


them what they must do and what they must not do, telling 
them what they shall and shall not eat, drink, and wear, and 
who shall vote and who shall not vote. 

The convention which framed it was divided, as has been stated, 
into two parties: one in favor of a national, and the other of a federal 
government. The former, consisting, for the most part, of the younger 
and more talented members of the body,—but of the less experienced, 
—prevailed in the early stages of its proceedings. A negative on the 
action of the governments of the several States, in some form or 
other, without a corresponding one, on their part, on the acts of the 
government about to be formed, was indispensable to the consumma¬ 
tion of their plan. They, accordingly, as has been shown, attempted, 
at every stage of the proceedings of the convention, and in all possi¬ 
ble forms, to insert some provision in the constitution, which would 
in effect, vest it with a negative; but failed in all. The party in favor 
of a federal form, subsequently acquiesced, but without surrendering 
their preference for their own favorite plan; or yielding, entirely, 
their confidence in the plan adopted, or the necessity of a negative on 
the action of the separate governments of the States. They regarded 
the plan as but an experiment; and determined, as honest men and 
good patriots, to give it a fair trial. They even assumed the name of 
federalists. 1 Calhoun's WorTcs, pp. 3JfO-l. 

Is the United States Government Federal, National or a 

League? 

Before the adoption of the Constitution, the several States who 
were parties to the Confederation were independent and sovereign. 
This theory, although disputed by high authority, seems to be estab¬ 
lished. Prior to the outbreak of the Revolution, the colonies were 
separate, connected with each other only through their common de¬ 
pendence upon Great Britain, differing in the race of their inhabi¬ 
tants, the character of their occupations, and the nature of their 
religion. When the difficulties arose with Great Britain, at the out¬ 
break of the Revolutionary War, they sent delegates to the Conti¬ 
nental Congress, which superintended the conduct of the war, and 
which passed and promulgated the Declaration of Independence. Fos¬ 
ter on the Constitution, Vol. 1, p. 63. 

In the legislature of South Carolina, which recommended the 
State Convention of ratification, General Charles Cotesworth Pinck¬ 
ney, after quoting the Declaration of Independence, used these pro¬ 
phetic words: 

“The separate independence and individual sovereignty of the 
several States were never thought of by the enlightened band of pa¬ 
triots who framed this Declaration; the several States are not even 
mentioned by name in any part of it, as if it was intended to impress 
this maxim on America, that our freedom and independence arose 
from our Union, and that without it we could be neither free nor 
independent. Let us, then, consider all attempts to weaken this Union, 
by maintaining that each State is separately and individually inde- 


Government of U. 8., Is It Federal, Nat’l or Republic? 159 

pendent, as a species of political heresy, which can never benefit us, 
but may bring on us the most serious distress.” Foster on the Con - 
stitution, Vol. 1, pp. 68-9. 

The United States are a nation. The Union is not a league, and 
cannot be dissolved except by a revolution. These are principles 
which have been established by the adjudications of the courts, the 
action of Congress and the executive, the acquiescence of the States, 
and the arbitrament of war. The question lies at the foundation of 
the government, and on it the people of the country were for three- 
quarters of a century divided. Now that a generation is in power 
which accepts the decision, whether sound or erroneous, as final, 
the arguments on either side deserve a dispassionate consideration. 
Foster on the Constitution, Vol. 1 p. 61. 

If the Constitution is a league, it is no longer binding upon any 
one of the States which has determined to withdraw from it. The 
citizens of that State must, it is said, obey the will of the State in 
that respect, and in waging war under the State banner against the 
United States, they are not guilty of treason. The advocates of the 
prevailing view have denied that the States were sovereign before the 
adoption of the Constitution. They have denied that the States 
formed the Constitution, insisting that its preamble shows that it was 
adopted, not by the States, but by the people of the country at large, 
whose votes were taken in the States of their respective residence for 
convenience, without any legal signification. Even if the Constitution 
was formed by some of the States, they had the power to so merge 
themselves together in one nation as to make subsequent separation 
illegal. The proceedings of the Federal Convention, it is claimed, 
show that it was the intention of its members to establish a national 
form of government, and not a league. Foster on the Constitution , 
Vol. 1, p. 62. 

Is the American Government Federal, National or Republic? 

Mr. Madison said of onr Government in this respect: 

It is to be the assent and ratification of the several States, derived 
from the supreme authority in each State,—the authority of the peo¬ 
ple themselves. The act, however, establishing the Constitution, will 
not be a NATIONAL, but a FEDERAL act. 

That it will be a federal and not a national act, as these terms are 
understood by the objectors; the act of the people, as forming so 
many independent States, not as forming one aggregate nation, is ob¬ 
vious from this single consideration, that it is to result neither from 
the decision of a MAJORITY of the people of the Union, nor from 
that of a MAJORITY of the States. It must result from the UNANI¬ 
MOUS assent of the several States that are parties to it, differing no 
otherwise from their ordinary assent than in its being expressed, not 
by the legislative authority, but by that of the people themselves. 
Were the people regarded in this transaction as forming one nation, 
the will of the majority of the whole people of the United States would 
bind the minority, in the same manner as the majority in each State 
must bind the minority; and the will of the majority must be deter- 


160 Government of U. S., Is It Federal, Nat’l or Republic? 


mined either by a comparison of the individual votes, or by considering 
the will of the majority of the States as evidence of the will of a ma¬ 
jority of the people of the United States. Neither of these rules have 
been adopted. Each State, in ratifying the Constitution, is considered 
as a sovereign body, independent of all others, and only to be bound 
by its own voluntary act. In this relation, then, the new Constitution 
will, if established, be a FEDERAL, and not a NATIONAL constitu¬ 
tion. Madison in The Federalist, Vol. I, Number XXXIX. 

The Executive power will be derived from a very compound source. 
The immediate election of the President is to be made by the States 
in their political characters. The votes allotted to them are in a com¬ 
pound ratio, which considers them partly as distinct and coequal so¬ 
cieties, partly as unequal members of the same society. The eventual 
election, again, is to be made by that branch of the legislature which 
consists of the national representatives; but in this particular act 
they are to be thrown into the form of individual delegations, from 
so many distinct and coequal bodies politic. From this aspect of the 
government it appears to be of a mixed character, presenting at least 
as many FEDERAL as NATIONAL features. 

The difference between a federal and national government, as it 
relates to the OPERATION OF THE GOVERNMENT, is supposed to 
consist in this, that in the former the powers operate on the political 
bodies composing the Confederacy, in their political capacities; in 
the latter, on the individual citizens composing the nation, in their 
individual capacities. On trying the Constitution by this criterion, 
it falls under the NATIONAL, not the FEDERAL character; though 
perhaps not so completely as has been understood. Madison in The 
Federalist, Vol. I, Number XXXIX. 

If we try the Constitution by its last relation to the authority by 
which amendments are to be made, we find it neither wholly NA¬ 
TIONAL nor wholly FEDERAL. Were it wholly national, the supreme 
and ultimate authority would reside in the MAJORITY of the people 
of the Union; and this authority would be competent at all times, 
like that of a majority of every national society, to alter or abolish its 
established government. Were it wholly federal, on the other hand, 
the concurrence of each State in the Union would be binding on all. 
The mode provided by the plan of the convention is not founded on 
either of these principles. In requiring more than a majority, and 
particularly in computing the proportion by States, not by CITIZENS, 
it departs from the NATIONAL and advances towards the FEDERAL 
character; in rendering the concurrence of less than the whole num¬ 
ber of States sufficient, it loses again the FEDERAL and partakes 
of the NATIONAL character. 

The proposed Constitution, therefore, is, in strictness, neither a. 
national nor a federal Constitution, but a composition of both. In its 
foundation it is federal, not national; in the sources from which the' 
ordinary powers of the government are drawn, it is partly federal 
and partly national; in the extent of them, again, it is federal, not 
national; and, finally, in the authoritative mode of introducing 
amendments, it is neither wholly federal nor wholly national. Madi¬ 
son in The Federalist, Vol. I, Number XXXIX. 


Government of U. 8., Not Republic Nor Democracy 161 

It appears, 1st, that the object of the convention was to establish, 
in these States, A FIRM NATIONAL GOVERNMENT; 2d, that this 
government was to be such as would be ADEQUATE TO THE EXI¬ 
GENCIES OF GOVERNMENT and THE PRESERVATION OF THE 
UNION; 3d, that these purposes were to be effected by ALTERATIONS 
AND PROVISIONS IN THE ARTICLES OF CONFEDERATION as it 
is expressed in the act of Congress, or by SUCH FURTHER PRO¬ 
VISIONS AS SHOULD APPEAR NECESSARY, as it stands in the rec¬ 
ommendatory act from Annapolis; 4th, that the alterations and pro¬ 
visions were to be reported to Congress, and to the States, in order 
to be agreed to by the former and confirmed by the latter. 

From a comparison and fair construction of these several modes of 
expression, is to be deduced the authority under which the conven¬ 
tion acted. They were to frame a NATIONAL GOVERNMENT, ade¬ 
quate to the EXIGENCIES OF GOVERNMENT, and OF THE UNION; 
and to reduce the articles of Confederation into such form as to ac¬ 
complish these purposes. Madison in The Federalist, Vol. I , Numbei 
XL. 


The United States Government Not a Republic Nor a 

Democracy 

Mr. Calhoun thus states the case: 

It is not an uncommon impression, that the government of the 
United States is a government based simply on population; that 
numbers are its only element, and a numerical majority its only con¬ 
trolling power. In brief, that it is an absolute democracy. No opinion 
can be more erroneous. 1 Calhoun's Works, pp. 168-9. 

The government of the United States is a democratic federal Re¬ 
public,—democratic in contradistinction to aristocratic, and mon¬ 
archical,—federal, in contradistinction to national, on the one hand,— 
ana to a confederacy, on the other; and a Republic—a government of 
the concurrent majority, in contradistinction to an absolute democracy 
—or a government of the numerical majority. 

But the government of the United States, with all its complications 
and refinement of organization, is but a part of a system of govern¬ 
ments. It is the representative and organ of the States, only to the 
extent of the powers delegated to it. Beyond this, each State has its 
own separate government, which is its exclusive representative and 
organ, as to all the other powers of government,—or, as they are 
usually called, the reserved powers. 1 Calhoun's Works, p. 187. 

Powers Conferred On the United States Government 

Mr. Madison thus formulates them: 

1. Security against foreign danger. 2. Regulation of the inter¬ 
course with foreign nations. 3. Maintenance of harmony and proper 
intercourse among the States. 4. Certain miscellaneous objects of 
general utility. 5. Restraint of the States from certain injurious acts. 
6. Provisions for giving due efficacy to all these powers. 


162 


Government of U. 8., One of Limited Powers 


The powers falling within FIRST class are those of declaring war 
and granting letters of marque; of providing armies and fleets; of 
regulating and calling forth the militia; of levying and borrowing 
money. 

Security against foreign danger is one of the primitive objects of 
civil society. It is an avowed and essential object of the American 
Union. The powers requisite for attaining it must be effectually con¬ 
fided to the federal councils. 

Is the power of declaring war necessary? No man will answer 
this question in the negative. It would be superfluous, therefore, to 
enter into a proof of the affirmative. The existing Confederation 
establishes this power in the ample form. Madison in The Federalist , 
Yol. 7, Number XLI. 

United States Government a Government of Limited 

Powers 

The Supreme Court thus describes it: 

The government of the United States is the government ordained 
by the Constitution, and possesses the powers conferred by the Con¬ 
stitution. “This original and supreme will organizes the government, 
and assigns to different departments their respective powers. It may 
either stop here, or. establish certain limits not to be transcended by 
those departments. The government of the United States is of the 
latter description. The powers of the legislature are defined and 
limited; and that those limits may not be mistaken or forgotten, the 
Constitution is written. To what purpose are powers limited, and 
to what purpose is that limitation committed to writing, if these 
limits may, at any time, be passed by those intended to be restrained?” 
1 Cranch, 137, 176. The opinion of the court in that case was de¬ 
livered in February, 1803, and at the October term, 1885, the court, 
in 118 U. S. 356, said: “When we consider the nature and theory of 
our institutions of government, the principles upon which they are 
supposed to rest, and review the history of their development, we are 
constrained to conclude that they do not mean to leave room for the 
play and action of purely personal and arbitrary power. Sovereignty 
itself is, of course, not subject to law, for it is the author and source 
of law; but in our system, while sovereign powers are delegated to 
the agencies of government, sovereignty itself remains with the peo¬ 
ple, by whom and for whom all government exists and acts. And the 
law is the definition and limitation of power.” 

From Marbury v. Madison, 1 Cranch, 137, to the present day, no 
utterance of this court has intimated a doubt that in its operation 
on the people, by whom and for whom it was established, the national 
government is a government of enumerated powers, the exercise of 
which is restricted to the use of means appropriate and plainly adapted 
to constitutional ends, and which are “not prohibited, but consist with 
the letter and spirit of the Constitution.” 

The powers delegated by the people to their agents are not en¬ 
larged by the expansion of the domain within which they are exer¬ 
cised. When the restriction on the exercise of a particular power by 
a particular agent is ascertained, that is ah end of the question. 


Government of U. 8., One of Limited Powers 


163 


To hold otherwise is to overthrow the basis of our constitutional 
law, and moreover, in effect, to reassert the proposition that the 
states and not the people created the government. 

It is again to antagonize Judge Marshall, when he said: 

“The government of the Union, then, (whatever may be the in¬ 
fluence of this fact on the case,) is, emphatically, and truly, a gov¬ 
ernment of the people. In form and in substance it emanates from 
them. Its powers are granted by them, and are to be exercised di¬ 
rectly on them, and for their benefit. This government is acknowl¬ 
edged by all to be one of enumerated powers.” 4 Wheat. 404. . . . 

The underlying principle is indicated by Judge Taney, in 7 How. 
283, 492, where he maintained the right of the American citizen to 
free transit in these words: “Living as we do under a common gov¬ 
ernment, charged with the great concerns of the whole Union, every 
citizen of the United States, from the most remote states or terri¬ 
tories, is entitled to free access, not only to the principal departments 
established at Washington, but also to its judicial tribunals and pub¬ 
lic offices in every state and territory of the Union. . . . For all 

the great purposes for which the federal government was formed, 
we are one people, w T ith one common country. We are all citizens of 
the United States; and, as members of the same community, must 
have the right to pass and repass through every part of it without in¬ 
terruption, as freely as in our own states.” 

In 1G How. 164, 197, it was held that by the ratification of the 
treaty with Mexico “California became a part of the United States,” 
and that: “The right claimed to land foreign goods within the United 
States at any place out of a collection district, if allowed, would be 
a violation of that provision in the Constitution which enjoins that 
all duties, imposts and excises shall be uniform throughout the United 
States.” 

In 19 How. 393, the court was unanimous in holding that the power 
to legislate respecting a territory was limited by the restrictions of 
the Constitution, or, as Judge Curtis put it, “by the express prohibi¬ 
tions on Congress not to do certain things.” 

Mr. Justice McLean said: “No powers can be exercised which are 
prohibited by the Constitution, or which are contrary to its spirit.” 

Mr. Justice Campbell said: “I look in vain, among the discussions 
of the time, for the assertion of a supreme sovereignty for Congress 
over the territory then belonging to the United States, or that they 
might thereafter acquire. I seek in vain for an annunciation that a 
consolidated power had been inaugurated, whose subject compre¬ 
hended an empire, and which had no restriction but the discretion of 
Congress.” 

Chief Justice Taney said: “The powers over persons and property 
of which we speak are not only not granted to Congress, but are in 
express terms denied, and they are forbidden to exercise them. And 
this prohibition is not confined to the states, but the words are gen¬ 
eral, and extend to the whole territory over which the Constitution 
gives it power to legislate, including those portions of it remaining 
under territorial government, as well as that covered by states. It 
is a total absence of power everywhere within the dominion of the 
United States, and places the citizens of a territory, so far as these 


164 Government , Conflicts Between Federal and States 


rights are concerned, on the same footing with citizens of the states, 
and guards them as firmly and plainly against any inroads which the 
general government might attempt, under the plea of implied or in¬ 
cidental powers.” 182 U. 8. 358-61. 

Powers of United States Government in Controversies 
Between States 

In 1827 Mr. Madison wrote to Mr. Van Buren as follows: 

If it be understood that our political system contains no provision 
for deciding questions between the Union and its members but that of 
negotiation, this failing, but that of war, as between separate and in¬ 
dependent Powers, no time ought to be lost in supplying, by some 
mode or other, the awful omission. What has been called a Govern¬ 
ment is, on that supposition, a mere league only; a league with too 
many parties to be uniformly observed or effectively maintained. 

You did well, I think, in postponing the attempt to amend the 
phraseology of the Constitution on a point essentially affecting its 
operative character. 3 Writings of Madison, p. 569. 

Conflicts Between State and Federal Powers in the United 

States 

In 1808 the legislatures of some of the New England States passed 
resolutions condemning the embargo which the National government 
had laid upon shipping by an Act of that year. The State judges, em¬ 
boldened by these resolutions, “took an attitude consistently hostile 
to the embargo,” holding it to be unconstitutional; and the Federal 
courts of New England “seldom succeeded in finding juries which 
would convict even for the most flagrant violation of its provisions.” 
In 1821 the governors of Massachusetts and Connecticut refused to 
allow the State militia to leave their State in pursuance to a requisi¬ 
tion made by the President under the authority of an Act of Con¬ 
gress, alleging the requisition to be unconstitutional. In 1828-30 Geor 
gia refused to obey an Act of Congress regarding the Cherokee In¬ 
dians and to respect the treaties which the United States had made 
with this tribe and the Creeks. The Georgia legislature passed and 
enforced an Act in contempt of Federal authority, and disregarded 
the orders of the Supreme Court, President Jackson, who had an old 
frontiersman’s hatred to the Indians, declining to interfere. 

Finally, in 1822, South Carolina, first in a State convention and 
then by her legislature amplified while professing to repeat the claim 
of the Kentucky resolutions of 1789, declared the tariff imposed by 
Congress to be null and void as regards herself, and proceeded to 
prepare for secession and war. In none of these cases was the dis¬ 
pute fought out either in the courts or in the field; and the questions 
as to the right of a State to resist Federal authority, and as to the 
means whereby she could be coerced, were left over for future set¬ 
tlement. Settled they finally were by the Civil War of 1861-65, since 
which time the following doctrines may be deemed established: 


Government of TJ. S., Classification of Powers 165 

No State has a right to declare an act of the Federal Government 
invalid. 

No State has a right to secede from the Union. 

The only authority competent to decide finally on the constitution¬ 
ality of an act of Congress or of the national executive is the Fed¬ 
eral judiciary. Bryce's American Commonwealth, Vol. 1, 328-9. 

Except in the cases which have already been specified, the National 
government has no right whatever of interfering either with a State 
as a commonwealth or with the individual citizens thereof, and may 
be lawfully resisted should it attempt to do so. 

“What then,” the European reader may ask, “Is the National gov¬ 
ernment without the duty of correcting the social and political evils 
which it may find to exist in a particular State, and which a vast 
majority of the nation may condemn? Suppose widespread brigandage 
to exist in one of the States, endangering life and property. Suppose 
contracts to be habitually broken, and no redress to be obtainable in 
the State courts. Suppose the police to be in league with the assassins. 
Suppose the most mischievous laws to be enacted, laws, for instance, 
which recognize polygamy, leave homicide unpunished, drive away 
capital by imposing upon it an intolerable load of taxation. Is the 
nation obliged to stand by with folded arms while it sees a meritorious 
minority oppressed, the prosperity of the State ruined, a pernicious 
example set to other States? Is it to be debarred from using its su¬ 
preme authority to rectify these mischiefs?” 

The answer is, Yes. Unless the legislature or administration of 
such State transgresses some provision of the Federal Constitution 
(such as that forbidding ex post facto laws, or laws impairing the 
obligation of a contract), the National government not only ought to 
interfere but can interfere. The State must go its own way, with 
whatever injury to private rights and common interests its folly or 
perversity may cause. Bryce's American Commonwealth, Vol. I, 330-1. 

Classification of Powers of Government in the United States 

The powers of government are divided into three classes, to wit: 

(a) Legislative. 

(b) Executive. 

(c) Judicial. 

SEPARATION OF GOVERNMENTAL POWERS 

All American constitutions, state and federal, provide for the sep¬ 
aration of the three powers of government and their appointment to 
distinct and independent departments of the government. Black on 
Constitutional Law, 73. 

Powers of the Federal Government 

The governmental powers relating to intercourse with for¬ 
eign nations, such as commerce, treaties, wars and allegiances 
is by the constitution vested in the Federal government. Most 


166 Government, Nature of Reserved Powers 

all governmental powers, which are international, or relate 
or pertain to international affairs, are vested in the Federal 
government. 

The Nature of Governmental Power 

Mr. Hamilton says: “What is a power hut the ability or faculty 
of doing a thing? What is the ability to do a thing but the power of 
employing the means necessary to its execution? What is a LEGIS¬ 
LATIVE power but a power to make laws? What is the power of lay¬ 
ing and collecting taxes but a legislative power, or a power of making 
laws to lay and collect taxes? What are the proper means of executing 
such a power but necessary and proper laws?” 1 Tucker's Const, pp. 
364-5. 

In McCullough v. Md., 4 Wheaton, it is said: 

We admit, as all must admit, that the powers of the government 
are limited, and that its limits are not to be transcended; but we 
think the sound construction of the Constitution must allow to the 
national legislature that discretion, with respect to the means by 
which the powers it confers are to be carried into execution, which 
will enable that body to perform the high duties assigned to it in 
the manner most beneficial to the people. 1 Tucker's Const, p. 367. 

All means which are appropriate,—which are plainly adapted to 
that end,—which are not prohibited, but consist with the letter and 
spirit of the Constitution are constitutional. 1 Tucker's Const, p. 371. 

Governmental Powers Reserved 

The powers thus designated are divided into two distinct 
classes: those delegated by the people of the several States 
to their separate State governments, and those which they 
still retain, not having delegated them to either government. 
Among them is included the high sovereign power, by which 
they ordained and established both; and by which they can 
modify, change or abolish them at pleasure. This, with oth¬ 
ers not delegated, are those which are reserved to the people 
of the several States respectively. 

There are powers exercised by most other Governments, which, in 
the United States, are withheld by the people, both from the General 
Government and from the State governments. Of this sort are many 
of the powers prohibited by the Declaration of Right prefixed to the 
constitutions, or by the clauses in the constitution in the nature of 
such declarations. Nay, so far is the political system of the United 
States distinguishable from that of other countries, by the caution 
with which powers are delegated and defined, that in one very im¬ 
portant case, even of commercial regulation and revenue, the power 
is absolutely locked up against the hands of both Governments. A 
tax on exports can be laid by no constitutional authority whatever. 


Government, Granted and Reserved Powers 


167 


Governmental Powers Granted and Reserved 

Properly considered, the reserved and delegated powers can never 
come into conflict. The fact that a power is delegated, is conclusive 
that it is not reserved; and that, if not delegated, it is reserved, un¬ 
less indeed it be prohibited to the States. There is but a single ex¬ 
ception; the case of powers of such nature that they may be exercised 
concurrently by the State and General Government—such as the 
power of laying taxes, which, though delegated, may also be exercised 
by the State. 2 Calhoun's Works, p. 526. 

Governmental Powers Exclusive and Concurrent 

Many of the powers of the general government are unquestionably 
supreme and exclusive, while others, especially those in relation to 
remedies afforded by its courts to private suitors, are only concurrent 
with similar powers possessed by the state governments. If the 
power in respect to parties competent to sue in the national and 
federal courts could be supposed to exist in its absolute sense in the 
United States government its exercise has been modified and restricted 
by congress in the 11th section of the act of Sept. 24, 1789, which 
gives to the circuit courts no more than a concurrent jurisdiction with 
the state courts, of suits of a civil nature, at common law. 2 Stat. 60. 

Nor do all attributes of sovereignty devolve upon the national 
government. Whether considered as emanating directly from the 
people in their aggregate capacity, or as proceeding from the states, 
in their independent organization and character, the government of 
the Union is one of special powers, defined or necessarily implied in 
the terms of the grant. 4 Wheat. 407; 2 Story Const. 1907; 12 Pet. 657. 

Though the point has been labored with ability by a late jurist of 
eminence in this department of legal learning, to deduce from the 
circumstances attendant upon the establishment of this government, 
that the common law became embodied in it, as an efficient principle 
of its authority and action, (Du Ponceau on Jurisdiction, 85) yet the 
doctrine has never been declared or sanctioned by our courts. So far 
as the decisions have gone, they tend to repudiate the principle in toto. 
7 Cranch, 32; 1 Wheat. 415. 

There is, accordingly, no sure foundation for the assumption that 
the federal government possesses common law prerogatives inherent 
in the sovereign, which can be exercised without authority of positive 
law. 1 Wheat. 304-29. 136 U. S. 605. 

Exclusive Powers of United States Government 

The exclusive power of the federal government in relation to in¬ 
tercourse with foreign nations, potentates, and public authorities. 
This exclusive power is derived from its power of peace and war, its 
treaty-making power, its exclusive right to send and receive ambassa¬ 
dors. and other public functionaries; and its intercourse in exercising 
this power is exclusively with governments and public authorities, 
and has no connection whatever with private persons, whether they 
be emigrants or passengers, or travellers by land or water from a 


168 


Government, Mode of Executing Powers 


foreign country. This power over intercourse with foreign govern¬ 
ments and authorities has frequently been spoken of, in opinions de¬ 
livered in the Supreme Court, as an exclusive power. 7 How. 49 

This provision of the constitution, it is to be feared, is sometimes 
expounded without those qualifications which the character of the 
parties to that instrument, and its adaption to the purposes for which 
it was created, necessarily imply. Every power delegated to the 
federal government must be expounded in coincidence with a perfect 
right in the States to all that they have not delegated; in coincidence, 
too, with the possession of every power and right necessary for their 
existence and preservation; for it is impossible to believe that these 
ever were, either in intention or in fact, ceded to the general gov¬ 
ernment. Laws of the United States, in order to be binding, must be 
within the legislative powers vested by the constitution. Treaties, 
in order to be valid, must be made within the scope of the same 
powers; for there can be no authority of the United States, save what 
is derived immediately, and regularly and legitimately, from the con¬ 
stitution. A treaty no more than an ordinary statute can arbitrarily 
cede away any one right of a State, or of any citizen of a State. 5 How. 
613. 7 How. 507. 

Mode of Executing Powers of United States Government 

The powers of the government, as defined by the constitution and 
interpreted by the well-settled principles which have resulted from 
a century of wise and patriotic analysis, are supreme. These supreme 
powers extend to the protection of itself and all of its agencies, as 
well as to the preservation and the perpetuation of its usefulness; 
and these powers may be found not only in the express authorities 
conferred by the constitution, but also in necessary and proper im¬ 
plications. But while that is all true, it is also true that the powers 
must be exercised, not only by the organs, but also in conformity with 
the modes, prescribed by the constitution itself. These great federal 
powers, whose existence in all their plentitude and energy is incon¬ 
testable, are not autocratic and lawless; they are organized powers, 
committed by the people to the hands of their servants for their own 
government, and distributed among the legislative, executive and 
judicial departments, they are not extra the constitution, for in and 
by that constitution, and it alone, the United States, as a great demo 
cratic federal republic, was called into existence, and finds its con¬ 
tinued existence possible. 135 U. S. 82. 

Power of United States Government to Engage in Internal 

Improvements 

In a recent decision of the Supreme Court it is said: 

Article 2 of the treaty with Columbia (33 Stat. 2234) “grants to 
the United States in perpetuity the use, occupation and control of 
a zone of land and land under water for the construction, maintenance, 
operation, sanitation and protection of said canal.” By article 3. 
Panama “grants to the United States all the rights, power and au¬ 
thority within the zone mentioned and described in article 2 of this 


Government, Powers As to Internal Improvements 169 

agreement, .... which the United States would possess and ex¬ 
ercise if it were the sovereign of the territory within which said 
lands and waters are located, to the entire exclusion of the exercise 
by the Republic of Panama of any such sovereign rights, power or 
authority.” 

Other provisions of the treaty add to the grants named in these 
two articles further guaranties of exclusive rights of the United 
States in the construction and maintenance of this canal. It is hyper¬ 
critical to contend that the title of the United States is imperfect, and 
that the territory described does not belong to this Nation, because of 
the omission of some of the technical terms used in ordinary convey¬ 
ances of real estate. 

Further, it is said that the boundaries of the zone are not described 
in the treaty; but the description is sufficient for identification, and 
it has been practically identified by the concurrent action of the two 
nations alone interested in the matter. The fact that there may 
possibly be in the future some dispute as to the exact boundary on 
either side is immaterial. Such disputes not infrequently attend 
conveyances of real estate or cessions of territory. Alaska was ceded 
to us forty years ago, but the boundary between it and the English 
possessions east was not settled until within the last two or three 
years. Yet no one ever doubted the title of this republic to Alaska. 

Plaintiff contends that the Government has no power to engage 
anywhere in the work of constructing a railroad or canal. The deci¬ 
sions of this court are adverse to this contention. In 127 U. S. 1, 39, it 
was said: 

“It cannot at the present day be doubted that Congress, under the 
power to regulate commerce among the several States, as well as to 
provide for postal accommodations and military exigencies, had au¬ 
thority to pass these laws. The power to construct, or to authorize 
individuals or corporations to construct, national highways and bridges 
from state to state is essential to the complete control and regulation 
of interstate commerce. Without authority in Congress to establish 
and maintain such highways and bridges, it would be without au¬ 
thority to regulate one of the most important adjuncts of commerce. 
This power in former times was exerted to a very limited extent, the 
Cumberland or National road being the most notable instance. Its 
exertion was but little called for, as commerce was then mostly con¬ 
ducted by water, and many of our statesmen entertained doubts as to 
the existence of the power to establish ways of communication by 
land. But since, in consequence of the expansion of the country, the 
multiplication of its products, and the invention of railroads and 
locomotion by steam, land transportation has so vastly increased, 
a sounder consideration of the subject has prevailed and led to the 
conclusion that Congress has plenary power over the whole subject. 
Of course the authority of Congress over the Territories of the United 
States, and its power to grant franchises exercisable therein, are, and 
ever have been, undoubted. But the wider power was very freely 
exercised, and much to the general satisfaction, in the creation of the 
vast system of railroads connecting the East with the Pacific, travers- 


170 


Government, Extent and Supremacy of Powers 


ing states as well as territories, and employing the agency of state as 
well as Federal corporations. See Pacific Railroad Removal cases, 115 
U. S. 1, 14, 18.” 

In 153 U. S. 525, it was said: “Congress may create corporations 
as appropriate means of executing the powers of government, as, for 
instance, a hank for the purpose of carrying on the fiscal operations 
of the United States, or a railroad corporation for the purpose of 
promoting commerce among the states. 4 Wheat. 316, 422; 9 Wheat. 
738, 861, 873; 115 U. S. 1, 18; 127 U. S. 1, 39. Congress has likewise 
the power, exercised early in this century by successive acts in the 
Cumberland or National road, from the Potomac across the Alle- 
ghanies to the Ohio, to authorize the construction of a public highway 
connecting several states. See Indiana v. U. 8. 148 U. S. 148.” See 
also 148 U. S. 312. 

These authorities recognize the power of Congress to construct in¬ 
terstate highways. A fortiori, Congress would have like power within 
the territories and outside of state lines, for there the legislative power 
of Congress is limited only by the provisions of the Constitution, and 
cannot conflict with the reserved power of the states. Plaintiff, rec¬ 
ognizing the force of these decisions, seeks to obviate it by saying 
that the expressions were obiter dicta, but plainly they were not. They 
announce distinctly the opinion of this court on the questions pre¬ 
sented, and would have to be overruled if a different doctrine were 
now announced. Congress has acted in reliance upon these decisions 
in many ways, and any change would disturb a vast volume of rights 
supposed to be fixed; but we see no reason to doubt the conclusions 
expressed in those opinions, and adhere to them. Wilson v. Shaw, 
204 U. S. 32-35. 

Extent and Supremacy of Powers of United States Government 

It is an incontrovertible principle, that the government of the 
United States may, by means of physical force, exercised through its 
official agents, execute on every foot of American soil the powers and 
functions that belong to it. This necessarily involves the power to 
command obedience to its laws, and hence the power to keep the 
peace to that extent. This power to enforce its laws and to execute 
its functions in all places does not derogate from the power of the 
state to execute its laws at the same time and in the same places. The 
one does not exclude the other, except where both cannot be executed 
at the same time. In that case the words of the constitution itself 
show which is to yield. “This constitution, and all laws which shall 
be made in pursuance thereof, shall be the supreme law of the land.” 
Without the concurrent sovereignty referred to, the natural govern¬ 
ment would be nothing but an advisory government. Its executive 
power would be absolutely nullified. Why do we have marshals at 
all, if they cannot physically lay their hands on persons and things in 
the performance of their proper duties? What functions can they 
perform if they cannot use force? In executing the processes of the 
courts, must they call on the nearest constable for protection? Must 
they rely on him to use the requisite compulsion, and to keep the 
peace while they are soliciting and entreating the parties and by¬ 
standers to allow the law to take its course? This is the necessary 


Government, Powers, Limited and General 


171 


consequence of the positions assumed. If we indulge in such imprac¬ 
ticable views as these, and keep on refining and rerefining, we shall 
drive the national government out of the United States, and relegate 
it to the District of Columbia, or perhaps to some foreign soil. We 
shall bring it back to a condition of greater helplessness than that 
of the old confederation. It must execute its powers, or it is no 
government. It must execute them on the land as well as on the sea, 
on things as well as on persons. And, to do this, it must necessarily 
have power to command obedience, preserve order, and keep the peace; 
and no person or power in this land has the right to resist or ques¬ 
tion its authority, so long as it keeps within the bounds of its juris¬ 
diction. 100 U. S. 371, 394. 135 U. 8. 61. 

The general government can only act through its officers and 
agents, and they must act within the states. If, when thus acting, and 
within the scope of their authority, those officers can be arrested and 
brought to trial in a state court, for an alleged offence against the 
law of the state, yet warranted by the federal authority they possess, 
and if the general government is powerless to interfere at once for 
their protection—if their protection must be left to the action of the 
state court—the operations of the general government may at any 
time be arrested at the will of one of its members. 

The United States is a government with authority extending over 
the whole territory of the Union, acting upon the states and the peo¬ 
ple of the states. While it is limited in the number of its powers, so 
far as its sovereignty extends, it is supreme. No state government 
can exclude it from the exercise of any authority conferred upon it by 
the constitution; obstruct its authorized officers against its will; or 
withhold from it, for a moment, the cognizance of any subject which 
that instrument has committed to it. 135 U. 8. 62. 

Powers of United States Government Limited and General 

When the Constitution was under the discussions which preceded 
its ratification, it is well known that great apprehensions were ex¬ 
pressed by many, lest the omission of some positive exception, from 
the powers delegated, of certain rights, and of the freedom of the 
press particularly, might expose them to the danger of being drawn, 
by construction, within some of the powers vested in Congress more 
especially of the powder to make all laws necessary and proper for 
carrying their other powers into execution. In reply to this objection, 
it was invariably urged to be a fundamental and characteristic prin¬ 
ciple of the Constitution, that all powers not given by it were reserved; 
that no powers were given beyond those enumerated in the Constitu¬ 
tion, and such as were fairly incident to them; that the power over 
the rights in question, and particularly over the press, was neither 
among the enumerated powers, nor incident to any of them; and con¬ 
sequently that an exercise of any such power would be manifest 
usurpation. It is painful to remark how much the arguments now 
employed in behalf of the Sedition Act are at variance with the rea¬ 
soning which then justified the Constitution, and invited its ratifica¬ 
tion. 4 'Writings of Madison, p. 545. 


172 Government, Relation of State and Federal 

Relation of United States Government to the Several States 

The supreme authority in this country is divided between the 
government of the United States, whose action extends over the 
whole Union, but which possesses only certain powers enumerated 
in its written Constitution, and the separate governments of the sev¬ 
eral states, which retain all powers not delegated to the Union. The 
power expressly conferred upon congress to regulate commerce is 
absolute and complete in itself, with no limitations other than are 
prescribed in the constitution; is to a certain extent exclusively vested 
in congress, so far free from state action; is co-extensive with the 
subject on which it acts, and cannot stop at the external boundary 
of a state, but must enter into the interior of every state whenever 
required by the interests of commerce with foreign nations, does not 
comprehend the purely internal domestic commerce with foreign na¬ 
tions, or among the several states. This power, however, does not 
comprehend the purely internal domestic commerce of a state which 
is carried on between man and man within a state or between dif¬ 
ferent parts of the same state. 

The distinction is stated in the following comprehensive language: 
The genius and character of the whole government seem to be that 
its action is to be applied to all the external concerns of the nation, 
and to those internal concerns which affect the states generally; but 
not to those which are completely within a particular state, which 
do not affect other states, and with which it is not necessary to inter¬ 
fere for the purpose of executing some of the general powers of the 
government. The completely internal commerce of a state, then, 
may be considered as reserved for the state itself. 9 Wheat. 195. 
128 U. 8. 16-17. 

Difference Between the Nation and the State 

The National Government is an artificial creation, with no 
powers except those conferred by the instrument which cre¬ 
ated it. A State Government is a national growth, which 
prima facie possesses all the powers incident to any govern¬ 
ment wdiatever. Hence, if the question arises whether a State 
legislature can pass a law on a given subject, the presumption 
is that it can do so: and positive grounds must be adduced to 
prove that it cannot. It may be restrained by some inhibition 
either in the Federal Constitution, or in the Constitution of 
its own State. But such inhibition must be affirmatively 
shown to have been imposed, or, to put the same point in other 
words, a State Constitution is held to be, not a document con¬ 
ferring defined and specified powers on the legislature, but 
one regulating and limiting that general authority which the 
representatives of the people enjoy ipso jure by their organ¬ 
ization into a legislative body. 


Government, Relation of State and Federal 173 

“It has never been questioned that the American legislatures have 
the same unlimited power in regard to legislation which resides in 
the British Parliament, except where they are restrained by written 
Constitutions. That must be conceded to be a fundamental principle 
in the political organization of the American States. We cannot well 
comprehend how, upon principle, it could be otherwise. The people 
must, of course, possess all legislative power originally. They have 
committed this in the most general and unlimited manner to the sev¬ 
eral State legislatures, saving only such restrictions, as are imposed 
by the Constitution of the United States or of the particular State in 
question.” 

“The people, in framing the Constitution, committed to the legis¬ 
lature the whole law-making powers of the State which they did not 
expressly or impliedly withhold. Plenary power in the legislature, 
for all purposes of civil government, is the rule. A prohibition to 
exercise a particular power is an exception.” 

It must not, however, be supposed from these dicta that even if 
the States were independent commonwealths, the Federal Government 
having disappeared, their legislatures would enjoy anything approach¬ 
ing the omnipotence of the British Parliament, “whose power and 
jurisdiction is,” says Edward Coke, “so transcendent and absolute 
that it cannot be confined, either for persons, or causes, within any 
bounds.” “All mischiefs and grievances,” adds Blackstone, “opera¬ 
tions and remedies that transcend the ordinary course of the laws are 
within the reach of this extraordinary tribunal.” Parliament being 
absolutely sovereign, can command, or extinguish and swallow up the 
executive and the judiciary, appropriating to itself their functions. 
But in America, a legislature is a legislature and nothing more. The 
same instrument which creates also the executive governor and the 
judges. They hold by a title as good as its own. If the legislature 
should pass a law depriving the governor of an executive conferred by 
the Constitution, that would be void. If the legislature attempted to 
interfere with the jurisdiction of the courts, their action would be 
even more palpably illegal and ineffectual. Bryce's American Com¬ 
monwealth, Vol. I, 428-29-30. 

The real blemishes in the system of State government are all 
found in the composition or conduct of the legislatures. They are 
the following: 

Inferiority point of knowledge, of skill, and sometime of conscience, 
of the bulk of the men who fill these bodies. 

Improvidence in matters of finance. 

Heedlessness in passing administrative bills. 

Want of proper methods for dealing with local and special bills. 

Failure of public opinion adequately to control legislation, and par¬ 
ticularly special bills. 

The practical result of these blemishes has been to create a large 
mass of State and local indebtedness which ought never to have been 
incurred, to allow foolish experiments in law-making to be tried, and 
to sanction a vast mass of private enterprises, in which public rights 
and public interests become the sport of speculators, or a source of 
gain to monopolists, with the incidental consequence of demoralizing 


174 Government of U. Sa Union, But Not a Nation 


the legislators themselves and creating an often unjust prejudice 
against all corporate undertakings. Bryce's American Commonwealth, 
Vol. I, 526. 

The Americans seem to reason thus: “Since a legislature is very- 
far gone from righteousness, and of its own nature inclined to do 
evil, the less chance it has of doing evil the better. If it meets, it 
will pass bad laws. Let us therefore prevent it from meeting.” 

They are no doubt right as practical men. They are consistent, 
as sons of the Puritans in their application of the doctrine of origi¬ 
nal sin. But this is a rather pitiful result for self-governing democ¬ 
racy to have arrived at. 

The European reader will ask, “Why all these efforts to deal with 
the symptoms of the malady itself? Why not reform the legislatures 
by inducing good men to enter them, and keeping a more constantly 
vigilant public opinion fixed upon them?” Bryce's American Common¬ 
wealth, Vol. I, 536. 

The average American voter, belonging to the labouring or farm¬ 
ing or shopkeeping class, troubles himself little about the conduct of 
State business. He voted the party ticket at elections as a good party 
man, and is pleased when his party wins. When a question comes up 
which interests him, like that of canal government, or the regulation 
of railway rates, or the limitation of the hours of the labor, he is eager 
to use his vote, and watches what passes in the legislature. He is 
sometimes excited over a contest for the governorship, and if the can¬ 
didate of the other party is a stronger and more honest man, may pos¬ 
sibly desert his party on that one issue. But in ordinary times he does 
not follow the proceedings of the legislature, as indeed how could he? 
Seeing that they are most scantily reported. The politics which he 
reads by preference are national politics; and especially whatever 
touches the next presidential election. In State contests that which 
chiefly fixes his attention is the influence of a State victory on an 
approaching national contest. Bryce's American Commonwealth, Vol. 
I, 550. 

The United States a Union, But Not a Nation 

Mr. Calhoun thus declares the difference between a Union 
and a Nation: 

We are as devoted to the Union as any portion of the American 
people; I use the phrase as meaning the people of the Union, but we 
see, in a national consolidated government, evils innumerable to us. 
Admit us to be a Nation and not an Union, and where would we stand? 
We are in the minority. We have peculiar institutions and peculiar 
productions, and shall we look to a mere numerical majority of the 
whole—the unsafest of all governments—for protection? I would 
rather trust a sovereign, rather an aristocracy—any form of govern¬ 
ment, than that. I hold that, whenever the idea becomes fixed, that 
the mere numerical majority have an inherent and indefeasible right 
to govern, constitutional liberty must cease. It is Dorrism. Rhode 
Island has had some experience of what that is,—and the last man I 
should suspect of advocating this doctrine as applied to the Union, is 


Government of U. S., Union, Purpose and Nature of 175 


the Senator from Rhode Island. It is bad enough when applied to a 
State, but when applied to our Union, it is ruinous. The true idea of 
a constitutional government is the reverse; a government of the 
whole,—a government which should fairly and fully express the sense 
of every portion, and thereby the sense of the whole, and not one that 
expresses simply the voice of the numerical majority, or the numerical 
minority. Either of them would be the government of a part over a 
part, and not the government of the whole. 4 Calhoun's Works, pp. 
357-8. 

The Purposes of the Union 

The principal purposes to be answered by union are these—the 
common defense of the members; the preservation of the public peace 
as well against internal convulsions as external attacks; the regula¬ 
tion of commerce with other nations and between States; the super¬ 
intendence of our intercourse, political and commercial, with foreign 
countries. Hamilton in Federalist, Number XXIII. 

If the circumstances of our country are such as to demand a com¬ 
pound instead of a simple, a confederate instead of a sole, govern¬ 
ment, the essential point which will remain to be adjusted will be to 
discriminate the objects, as far as it can be done, which shall apper¬ 
tain to the different provinces or departments of power; allowing to 
each the most ample authority for fulfilling the objects committed to 
its charge. Hamilton in Federalist, Number XXIII. 

A government, the constitution of which renders it unfit to be 
trusted with all the powers which a free people OUGHT TO DELE¬ 
GATE TO ANY GOVERNMENT, would be unsafe and improper de¬ 
positary of the NATIONAL INTERESTS. Wherever these can with 
propriety be confided, the coincident powers may safely accompany 
the subject. Hamilton in Federalist, Number XXIII. 

The United States a Union of States 

In the important case of Texas v. White, 7 Wall. 700, we read as 
follows: “By the articles of confederation, the Union was declared 
to be perpetual. And when these articles were found to be inadequate 
to the exigencies of the country, the constitution was ordained ‘to 
form a more perfect Union.’ It is difficult to convey the idea of indis¬ 
soluble if a perpetual unity more clearly than in these words. What 
can be indissoluble if a perpetual union made perfect is not? Thus, 
when a state has once become a member of the Union, ‘there is no 
place for reconsideration or revocation, except through revolution, or 
through the consent of the States.’ ‘But the perpetuity and indis¬ 
solubility of the Union by no means implies the loss of distinct and 
individual existence, or of the right of self-government, by the states. 
Without the states in union there could be no political body as the 
United States.’ ” Black on Constitutional Laws, 29. 

An Indisoluable Union of Indestructible States 

The United States is an indissoluble union of indestructible states. 
No state has the right to secede from it. The Union could be termi¬ 
nated only by the agreement of the people or by revolution. Black 
on Constitutional Law, 28. 


176 Government, Union, Causes Tending to Destruction of 

Causes Tending to Destruction of the Union 

Mr. Calhoun thus strongly states our Sectional parties or 
Geographical Politics: 

So long as it continues, there can he no safety for the weaker sec¬ 
tion. It places in the hands of the stronger and hostile section, the 
power to crush her and her institutions; and leaves her no alternative, 
but to resist, or sink down into a colonial condition. This must be 
the consequence, if some effectual and appropriate remedy be not ap¬ 
plied. 

The nature of the disease is such, that nothing can reach it, short 
of some organic change,—a change which shall so modify the con¬ 
stitution, as to give to the weaker section, in some one form ot* an¬ 
other, a negative on the action of the government. Nothing short of 
this can protect the weaker, and restore harmony and tranquility to 
the Union, by arresting, effectually, the tendency of the dominant and 
stronger section to oppress the weaker. When the constitution was 
formed, the impression w r as strong, that the tendency to conflict would 
be between the larger and smaller States; and effectual provisions 
were, accordingly, made to guard against it. But experience has 
proved this to have been a mistake; and that, instead of being, as was 
then supposed, the conflict is between the two great sections, which 
are so strongly distinguished by their institutions, geographical char¬ 
acter, productions and pursuits. Had this been then as clearly per¬ 
ceived as it is now, the same jealousy which so vigilantly watched and 
guarded against the danger of the larger States oppressing the smaller, 
would have taken equal precaution to guard against the same danger 
between the two sections. 1 Calhoun's Works, p. 391. 

Mr. Calhoun thus spoke of the causes which might destroy 
the Union and one of them came very near doing it, in 1861. 
He said: 

To these fatal measures are to be attributed the violence of party 
struggles: the total disregard of the provisions of the constitution in 
respect to the election of the President; the predominance of the hon¬ 
ors and emoluments of the government over every other consideration; 
the rise and growth of the abolition agitation; the formation of geo¬ 
graphical parties; and the alienation and hostile feelings between the 
two great sections of the Union. These are all the unavoidable con¬ 
sequences of the government of the numerical majority, in a country 
of such great extent, and with such diversity of institutions and inter¬ 
ests as distinguish ours. They will continue, with increased and in¬ 
creasing aggregation, until the end comes. 1 Calhoun's Works, p. 376. 

The vast power and patronage of the department are vested in a 
single officer, the President of the United States. Among these pow¬ 
ers, the most prominent, as far as it relates to the present subject, are 
those which appertain to the administration of the government; to the 
office of commander in chief of the army and navy of the United 
States; to the appointment of the officers of the government, with few 
exceptions; and to the removal of them at his pleasure,—as his au¬ 
thority has been interpreted by Congress. These, and especially the 


177 


Government—Division and Distribution of Powers 


latter, have made his election the great and absorbing object of party 
struggles; and on this the appeal to force will be made, whenever the 
violence of the struggle and the corruption of parties will no longer 
submit to the decision of the ballot-box. To this end it must come, 
if the force impelling it in the other direction should not previously 
prevail. If it comes to this, it will be, in all probability, in a con¬ 
tested election; when the question will be, Which is the President? 
The incumbent,—if he should be one of the candidates,—or, if not, 
the candidate of the party in possession of power? Or of the party 
endeavoring to obtain possession? On such an issue, the appeal to 
force would make the candidate of the successful party, master of the 
whole,—and not the commander, as would be the case under different 
circumstances. 

The contest would put an end, virtually, to the elective character 
of the department. 1 Calhoun's Works, pp. 377-378 . 

The conflict will thus become one between the States, occupying 
the different sections; that is, between organized bodies on both sides; 
each, in the event of separation, having the means of avoiding the 
confusion and anarchy, to which the parts would be subject without 
such organization. This would contribute much to increase the power 
of resistance on the part of the weaker section against the stronger, 
in possession of the government. With these great advantages and 
resources, it is hardly possible that the parties occupying the weaker 
section, would consent, quietly, under any circumstances, to sink 
down from independent and equal sovereignties, into a dependent and 
colonial condition; and still less so, under the circumstances that 
would revolutionize them internally, and put their very existence, as 
a people, at stake. Never was there an issue between independent 
States that involved greater calamity to the conquered, than is in¬ 
volved in that between the States which compose the two sections of 
this Union. The condition of the weaker, should it sink from a state 
of independence and equality to one of dependence and subjection, 
would be more calamitous than ever before befell a civilized people. 
1 Calhoun's Works, p. 380. 

Division and Distribution of Governmental Powers 

Mr. Webster thus speaks of the subject: 

The separation of the powers of government into three depart¬ 
ments, though all our constitutions profess to be founded on it, has 
nevertheless, never been perfectly established in any government of 
the world, and perhaps never can be. The general principle is of in¬ 
estimable value, and the leading lines of distinction sufficiently plain; 
yet there are powers of so undecided a character, that they do not 
seem necessarily to range themselves under either head. And most 
of our constitutions, too, having laid down the general principle, im¬ 
mediately create exceptions. There do not exist, in the general 
science of government, or the received maxims of political law, such 
precise definitions as enable us always to say of a given power whether 
it be legislative, executive or judicial. And this is one reason, doubt¬ 
less, why the Constitution, in conferring power on all the departments, 
proceeds not by general definition, but by specific enumeration. And, 


178 Government—Division and Distribution of Powers 

again, it grants a power in general terms, but yet, in the same or 
some other article or section, imposes a limitation or qualification on 
the grant; and the grant and the limitation must, of course, be con¬ 
strued together. 4 Webster's Works, (7th ed.), p. 123. 

Notwithstanding the departments are called the legislative, the 
executive, and the judicial, we must yet look into the provisions of 
the Constitution itself, in order to learn, first, what powers the Con¬ 
stitution regards as legislative, executive, and judicial; and, in the 
next place, what portions or quantities of these powers are conferred 
on the respective departments; because no one will contend that all 
legislative power belongs to Congress, all executive power to the Presi¬ 
dent, or all judicial power to the courts of the United States. 

The first three articles of the Constitution, as all know, are taken 
up in prescribing the organization, and enumerating the powers, of 
the three departments. The first article treats of the legislature, and 
its first section is, “All legislative power, herein granted, shall be vested 
in a Congress of the United States, which shall consist of a Senate 
and House of Representatives.” The second article treats of the ex¬ 
ecutive power, and its first section declares that “the executive power 
shall be vested in a President of the United States of America.” The 
third article treats of the judicial power,' and its first section declares 
that “the judicial power of the United States shall be vested in one 
Supreme Court, and in such inferior courts as the Congress may, from 
time to time, ordain and establish.” 4 Webster's Works, (7th ed.), p. 
124. 

The Federalist thus spoke on the subject: 

The members of each department should be as little dependent as 
possible on those of the others, for the emoluments annexed to their 
offices. Were the executive magistrate, or the judges, not independ¬ 
ent of the legislature, in this particular, their independence in every 
other would be merely nominal. 

But the great security against a gradual concentration of the sev¬ 
eral powers in the same department, consists in giving to those who 
administer each department the necessary constitutional means and 
personal motives to resist encroachments of the others. The pro¬ 
vision for defense must in this, as in all other cases, be made com¬ 
mensurate to the danger of the attack. Ambition must be made to 
counteract ambition. The interest of the man must be connected with 
the constitutional rights of the place. It may be a reflection on hu¬ 
man nature, that such devices should be necessary to control the 
abuses of government. But what is government itself, but the great¬ 
est of all reflections on human nature? If men were angels, no gov¬ 
ernment would be necessary. If angels were to govern men, neither 
external nor internal controls on government would be necessary. In 
framing a government which is to be administered by men over men, 
the great difficulty lies in this: you must first enable the government 
to control the governed; and in the next place oblige it to control it¬ 
self. Madison in The Federalist, Yol. I, Number LI. 

In republican government, the legislative authority necessarily 
predominates. The remedy for this inconveniency is to divide the 


Government—Division and Distribution of Powers 179 


legislature into different branches; and to render them, by different 
modes of election and different principles of action, as little connected 
with each other as the nature of their common functions and their 
common dependence on the society will admit. It may even be neces¬ 
sary to guard against dangerous encroachments by still further pre¬ 
cautions. As the weight of the legislative authority requires that it 
should be thus divided, the weakness of the executive may require, on 
the other hand, that it should be fortified. An absolute negative on 
the legislature appears, at first view, to be the natural defense with 
which the executive magistrate should be armed. But perhaps it 
would be neither altogether safe nor alone sufficient. On ordinary 
occasions it might not be exerted with the requisite firmness, and on 
extraordinary occasions it might be perfidiously abused. May not 
this defect of an absolute negative be supplied by some qualified con¬ 
nection between this weaker department and the weaker branch of 
the stronger department, by which the latter may be led to support 
the constitutional rights of the former, without being too much de¬ 
tached from the rights of its own department? Madison in The Fed¬ 
eralist, Vol. I t Number LI. 

Mr. Madison further speaks on this subject: 

One of the principal objections inculcated by the more respectable 
adversaries to the Constitution, is its supposed violation of the politi¬ 
cal maxim, that the legislative, executive, and judiciary departments 
ought to be separate and distinct. In the structure of the federal gov¬ 
ernment, no regard, it is said, seems to have been paid to this essen¬ 
tial precaution in favor of liberty. The several departments of power 
are distributed and blended in such a manner as at once to destroy 
all symmetry and beauty of form, and to expose some of the essential 
parts of the edifice to the danger of being crushed by the dispropor¬ 
tionate weight of other parts. 

No political truth is certainly of greater intrinsic value, or is 
stamped with the authority of more enlightened patrons of liberty, 
than that on which the objection is founded. The accumulation of all 
powers, legislative, executive, and judiciary, in the same hands, 
whether of one, a few, or many, and whether hereditary, self-ap¬ 
pointed, or elected, may justly be pronounced the very definition of 
tyranny. Were the Federal Constitution, therefore, really chargeable 
with the accumulation of power, or with a mixture of powers, having 
a dangerous tendency'to such an accumulation, no further arguments 
would be necessary to inspire a universal reprobation of the system. 
Madison in The Federalist, Vol. I, Number XLVII. 

The oracle who is always consulted and cited on this subject is the 
celebrated Montesquieu. If he be not the author of this invaluable pre¬ 
cept in the science of politics, he has the merit at least of displaying 
and recommending it most effectually to the attention of mankind. 
Madison in The Federalist, Vol: I, Number XLVII. 

From these facts, by which Montesquieu was guided, it may clearly 
be inferred that, in saying “There can be no liberty where the legis¬ 
lative and executive powers are united in the same person, or body 
of magistrates,” or, “if the power of judging be not separated from 


180 Government—Division and Distribution of Powers 


the legislative and executive powers,” he did not mean that these de¬ 
partments ought to have no PARTIAL AGENCY in, or no CONTROL 
over, the acts of each other. His meaning, as his own words, import, 
and still more conclusively as illustrated by the example in his eye, 
can amount to no more than this, that where the same hands which 
possess the WHOLE power of another department, the fundamental 
principles of a free constitution are subverted. Madison in The Fed¬ 
eralist, Vol. I, Number XLVII. 

It is agreed on all sides, that the powers properly belonging to one 
of the departments ought not to be directly and completely adminis¬ 
tered by either of the other departments. It is equally evident, that 
none of them ought to possess, directly or indirectly, an overruling in¬ 
fluence over the others, in the administration of their respective pow¬ 
ers. It will not be denied, that power is of an encroaching nature, and 
that it ought to be effectually restrained from passing the limits as¬ 
signed to it. Madison in The Federalist, Vol. I, Number XLVIII. 

The founders of our republics have so much merit for the wisdom 
which they have displayed, that no task can be less pleasing than that 
of pointing out the errors into which they have fallen. A respect for 
truth, however, obliges us to remark, that they seem never for a 
moment to have turned their eyes from the danger to liberty from the 
overgrown and all-grasping prerogative of an hereditary magistrate, 
supported and fortified by an hereditary branch of the legislative au¬ 
thority. They seem never to have recollected the danger from legis¬ 
lative usurpations, which, by assembling all power in the same hands, 
must lead to the same tyranny as is threatened by executive usurpa¬ 
tions. Madison in The Federalist, Vol, 1, Number XLVIII, 

Mr. Webster said: “The first object of a free people is the preserva¬ 
tion of their liberty, and liberty is only to be preserved by maintain¬ 
ing constitutional restraints and just divisions of political power. 
Nothing is more deceptive or more dangerous than the pretence of a 
desire to simplify government. 

“The simplest governments are despotisms; the next simplest, lim¬ 
ited monarchies; but all republics, all governments of law, must im¬ 
pose numerous limitations and qualifications of authority, and give 
many positive and many qualified rights. In other words, they must 
be subject to rule and regulation. This is the very essence of free 
political institutions. 

“The spirit of liberty is, indeed, a bold and fearless spirit; but it 
is also a sharp-sighted spirit; it is a cautious, sagacious, discriminat¬ 
ing, far-seeing intelligence; it is jealous of encroachment, jealous of 
power, jealous of man. It demands checks; it seeks for guards; it 
insists on securities; it entrenches itself behind strong defences, and 
fortifies itself with all possible care against the assaults of ambition 
and passion. It does not trust the amiable weaknesses of human na¬ 
ture, and therefore it will not permit power to overstep its prescribed 
limits, though benevolence, good intent, and patriotic purpose come 
along with it.” Taken from Lieber's Civil and Self-Government, 153-If. 

Unity of power, if sought for in wide-spread democracy, must lead 
always to monarchial absolutism. Virtually it is such; for it is in¬ 
different what the appearance or name may be to the democracy, is not 


Government—Division and Distribution of Powers 181 

a unit in reality; yet actual absolutism existing, it must be wielded 
by one man. All absolutism is therefore essentially a one-man gov¬ 
ernment. The ruler may not immediately take the crown; the pear 
may not be ripe, as Napoleon said to Sieyes; but it soon ripens, and 
then the avowed absolute power is traditional, because the tradition 
itself brings along with it some limitations by popular opinion. Of 
all absolute monarchs, however, it is true that “it is the vice of a 
pure (absolute) monarchy to raise the power so high and to surround 
it with so much grandeur that the head is turned of him who possesses 
it, and that those who are beneath him scarcely dare to look at him. 
The sovereign believes himself a god, the people fall into idolatry. 
People may then write on the duties of kings and the rights of sub¬ 
jects; they may even constantly preach upon them, but the situations 
have greater power than the words, and when the inequality is im¬ 
mense, the one easily forgets his duties, the others their rights.’* 
Lieber's Civil Liberty and Self-Government, 155. 

Montesquieu says: 

I should be glad to inquire into the distribution of the three pow¬ 
ers in all the moderate governments we are acquainted with, in order 
to calculate the degrees of liberty which each may enjoy. But we 
must not always exhaust a subject, so as to leave no work at all for 
the reader. My business is not to make people read, but to make them 
think. Montesquieu 1 s Works, Book XI, Chapter XX. 

There is no doubt but this distribution of powers was due 
to Baron Montesquieu’s work on the Spirit of Law. Federalist 
Nos. 47, 51. Mr. Tucker in his work on the Constitution has 
pointed out to what extent Montesquieu’s work was followed, 
and to what extent it was departed from. 1 Tucker’s Consti¬ 
tution, §390, et seq. 

The effect of the Federal Constitution was not alone to dis¬ 
tribute all the powers granted, among the three departments, 
but it also had the effect to distribute all the powers of the 
several states between two systems of government, the State 
and Federal; thus forming a double check upon the central¬ 
ization of pow r er, which Montesquieu and ffefferson had shown 
to be always so fatal to liberty. Each government thus' 
watches the other, to see that no power of the one is usurped 
by the other. 

When the legislative and executive powers are united in the same 
person, or in the same body of magistrates, there can be no liberty; 
because apprehensions may arise, lest the same monarch or senate 
should enact tyrannical laws, to execute them in a tyrannical manner. 

Again, there is no liberty if the judiciary power be not separated 
from the legislative and executive. Were it joined with the legisla¬ 
tive, the life and liberty of the subject would be exposed to arbitrary 


182 Government, Distribution of Powers Between 

State and United States 

control; for the judge would be then the legislator. Were it joined to 
the executive power, the judge might behave with violence and op¬ 
pression. 

There would be an end of every thing, were the same man, or the 
same body, whether of the nobles or of the people, to exercise those 
three powers, that of enacting laws, that of executing the public reso¬ 
lutions, and of trying the causes of individuals. 

Most kingdoms in Europe enjoy a moderate government, because 
the prince, who is invested with the first powers, leaves the third to 
his subjects. 

In Turkey, where these three powers are united in the sultan’s 
person, the subjects groan under the most dreadful oppression. 

In the republics of Italy, where these three powers are united, there 
is less liberty than in our monarchies. Montesquieu's Works, Book 
XI, Chapter VI. 

There was not in onr government a perfect distribution of 
powers to their respective departments, but each was given a 
check upon the others. The appointing, the treaty making, 
and war declaring power, naturally belongs to the Executive 
department. The Senate holds a check upon the first two, and 
the last is given to Congress. The power of impeachment is a 
Judicial power, and that is likewise given to Congress. The 
Executive is given the power to recommend laws to Congress, 
and also the power to veto, which is a check upon the law mak¬ 
ing power; while the Judicial department is given the power 
to construe the Constitution and the statutes, and to declare 
when they conflict, and by this means to prevent the Congress 
and the President from transcending the powers conferred 
upon them by the Constitution. 

Distribution of Powers Between United States and State 

Governments 

Mr. Bryce thus describes the distribution: 

The distribution of powers between the National and the State 
government is effected in two ways—Positively, by conferring certain 
powers on the National government; Negatively, by imposing certain 
restrictions on the States. It would have been superfluous to confer 
any powers on the States, because they retain all powers not actually 
taken from them. A lawyer may think that it was equally unneces¬ 
sary and, so to speak, inartistic, to lay any prohibitions on the National 
government, because it could ex hypothesi exercise no powers not ex¬ 
pressly granted. However, the anxiety of the States to fetter the mas¬ 
ter they were giving themselves caused the introduction of provisions 
qualifying the grant of express powers, and interdicting the National 
government from various kinds of action on which it might otherwise 
have been tempted to enter. The matter is further complicated by the 
fact that the grant of power to the National government is not in all 


Government, Distribution of Powers Between 18,3 
State and United States 

cases an exclusive grant: i. e. there are matters which both, or either, 
the States and the National government may deal with. “The men 
of a power to Congress does not of itself, in most cases, imply a pro¬ 
hibition upon the States to exercise the like power. . . . It is not 

the mere exercise of the National power, but is exercise, which is in 
compatible with the exercise of the same power by the States. Thus we 
may distinguish the following classes of governmental powers: 

Powers vested in the National government alone. 

Powers vested in the States alone. 

Powers exercisable by either the National government or the States. 

Powers forbidden to the National government. 

Powers forbidden to the States. 

It might be thought that the two latter classes are superfluous, 
because whatever is forbidden to the National government is permitted 
to the States, and conversely, whatever is forbidden to the States is 
permitted to the National government. But this is not so. For in¬ 
stance, Congress can grant no title of nobility (Art. i, Sec. 9). But 
neither can a State do so (Art. i. 10). The National government can¬ 
not take private property for public use without just compensation 
(Amendment v.) Apparently neither can any State do so (Amend¬ 
ment xiv. as interpreted in several cases). So no State can pass any 
law impairing the obligation of a contract (Art. i. Sec. 10). But the 
National government, although not subject to a similar direct pro¬ 
hibition, has received no general power to legislate as regards ordi¬ 
nary contracts, and might therefore in some cases find itself equally 
unable to pass a law which a State legislature, though for a different 
reason, could not pass. So no State can pass any ex post facto law. 
Neither can Congress. Bryce's American Commonwealth, Vol. I, 306-7. 

A State is, within its proper sphere, just as legally supreme, just 
as well entitled to give effect to its own will, as is the National gov¬ 
ernment within its sphere; and for the same reason. All authority 
flows from the people. The people have given part of their supreme 
authority to the central, part to the State Governments. Both hold by 
the same title, and therefore the National government, although supe¬ 
rior wherever there is a concurrence of powers, has no more right to 
trespass upon the domain of a State than a State has upon the. domain 
of Federal action. “When a particular power,” says Judge Cooley, 
“is found to belong to the States, they are entitled to the same com¬ 
plete independence in its exercise as is the National government in 
wielding its own authority.” That the course which a State is follow¬ 
ing is pernicious, that its motives are bad and its sentiments disloyal 
to the Union, makes no difference until or unless it infringes on the 
sphere of Federal authority. Bryce's American Commonwealth, Yol. 
I, 31J h 

The States serve to form the National government by choosing 
presidential electors, by choosing senators, and by fixing the franchises. 
No difficulty has ever arisen (except during the Civil War) from any 
unwillingness of the States to discharge these duties, for each State 
is eager to exercise as much influence as it can on the national execu¬ 
tive and Congress. But note how much latitude has been left to the 
States. A State may appoint its presidential electors in any way it 


184 Government, Distribution of Powers Between 

State and United States 

pleases. All States now do appoint them by popular vote. But dur¬ 
ing the first thirty years of the Union many States left the choice of 
electors to their respective legislatures. Bryce's American Common¬ 
wealth, Vol. I, 319. 

The Federal Constitution deprives the States of certain powers 
they would otherwise enjoy. Some of these, such as that of making 
treaties, are obviously impermissible, and such as the State need not 
regret. Others, however, seriously restrain their daily action. They 
are liable to be sued in the Federal courts by another State or by a 
foreign power. They cannot, except with the consent of Congress, 
tax exports or imports, or in any case pass a law impairing the obliga¬ 
tion of a contract. They must surrender fugitives from the justice of 
any other State. Bryce's American Commonwealth, Vol. I, 320. 

Mr. Hamilton, in one number of the Federalist, remarks 
that, “In a single republic, all the power surrendered by 
the people is submitted to the administration of a single gov¬ 
ernment; and usurpations are guarded against, by a division 
of the government into distinct and separate departments. In 
the compound republic of America, the power surrendered by 
the people is first divided between two distinct governments, 
and then the portion allotted to each subdivided among dis¬ 
tinct and separate departments. Hence a double security 
arises to the rights of the people. The different governments 
will control each other; at the same time that each will be 
controlled by itself.” 

Mr. Jefferson while Vice-President, in writing the Ken¬ 
tucky Resolution in 1798 said: 

“The Government, created by this compact, was not made 
the exclusive or final judge of the extent of the powers dele¬ 
gated to itself; since that would have made its discretion, and 
not the Constitution, the measure of its powers; but, as in 
all other cases of compact between parties having no common 
judge, each party has an equal right to judge for itself, as 
well of infractions as of the mode and measure of redress.” 

To whatever school of construction our statesmen have be¬ 
longed, they have generally been agreed in one thing,—that 
the chief excellence of our system of government consists in 
its apportionment of powers, and that the perpetuation of this 
should be matter of primary solicitude. Mr. Everett expresses 
the fundamental idea of our system in his History of Liberty. 
“The framers of the Constitution,” he says, “devised a 
scheme of confederate and representative sovereign republics, 
united in a happy distribution of powers, which reserving to 
the separate States all the political functions essential to local 


Government, Distribution of Powers Between 185 
State and United States 

administration and private justice, bestowed upon the general 
government those and those only required for the service of 
the whole.” Speeches and Orations, I. 167. Mr. Webster 
may also be quoted: “Circumstances,” he says, “have 
wrought out for us a state of things which, in other times and 
in other regions, philosophy has dreamed of, and theory has 
proposed, and speculation has suggested, but which man has 
never been able to accomplish. I mean the government of a 
great nation over a vastly extended portion of surface of the 
earth, by means of local institutions for local purposes and 
general institutions for general purposes. I know of nothing 
in the history of the world, notwithstanding the great league 
of Grecian states, notwithstanding the success of the Roman 
system,—and certainly there is no exception to the remark in 
modern history,—I know of nothing so suitable on the whole 
for the great interests of a great people, spread over a large 
portion of the globe, as the provisions of local legislation for 
local and municipal purposes, with, not a confederacy, nor a 
loose binding together of separate parts, but a limited, posi¬ 
tive, general government, for positive, general purposes, over 
the whole.” Webster’s Works, II. 207. Particularly forci¬ 
ble in the same connection is the language of Mr. Jefferson. 
“The State,” he says, “as well as their central government, 
like the planets revolving around their common sun, acting 
and acted upon according to their respective weights and dis¬ 
tances, will produce that beautiful equilibrium on which our 
Constitution is founded, and which it will exhibit to the world 
in a degree of perfection unexampled but .in the planetary 
system itself. The enlightened statesman, therefore, will en¬ 
deavor to preserve the weight and influence of every part, as 
too much given to any member of it would destroy the general 
equilibrium.” Letter to Fitzhugh, Works, IV, 217. See Story 
on the Constitution (Vol. V, p. 715 (note).). 

Necessity of Division of Governmental Powers 

Mr. Calhoun thus states the case: 

Indeed, it would seem impossible to produce organic action by a 
single power,—and that it must ever be the result of two or more 
powers, mutually acting and reacting on each other. And hence the 
political axiom,—that there can be no constitution, without a division 
of power, and no liberty without a constitution. To this a kindred 
axiom may be added;—that there can be no division of power, with¬ 
out a self-protecting power in each of the parts into which it may be 
divided; or in a superior power to protect each against the other. 


186 Government, Three Departments of 

Without a division of power there can be no organism; and without 
the power of self-protection, or a superior power to restrict each to 
its appropriate sphere, the stronger will absorb the weaker, and con¬ 
centrate all power in itself. 1 Calhoun's Works, p. 237. 

The Three Departments of Government 

Mr. Jefferson thoroughly believed in the independence of the 
three Departments of Government. He did not believe the 
Judiciary was given the power or the function to construe the 
Constitution, for either of the other departments. He con¬ 
tended that if the Judiciary were to say to the other depart¬ 
ments of government what the Constitution means, that the 
Constitution would be a mere thing of wax to be shaped as the 
Judiciary might think proper. He thus illustrates his ideas on 
the subject, in 1819, seven years before his death. In writing 
to Judge Roane, who then requested his views, he says: 

In denying the right they usurp of exclusively explaining the Con¬ 
stitution, I go further than you do, if I understand rightly your quo¬ 
tation from the Federalist, of an opinion that “the judiciary is the 
last resort in relation to the other departments of the government, but 
not in relation to the rights of the parties to the compact under which 
the judiciary is derived.” If this opinion be sound, then indeed is our 
Constitution a complete felo de se. For intending to establish three 
departments, co-ordinate and independent, that they might check and 
balance one another, it was given, according to this opinion, to one 
of them alone, the right to prescribe rules for the government of the 
others, and to that one too, which is unelected by, and independent 
of the nation. 15 Jefferson's Writings, (Mem. ed.), pp. 212-213. 

Again in the same letter he adds: 

1 will explain myself by examples, which, having occurred while 
I was in office, are better known to me, and the principles which 
governed them. 

A legislature had passed the sedition law. The federal courts had 
subjected certain individuals to its penalties of fine and imprison¬ 
ment. On coming into office, I released these individuals by the power 
of pardon committed to executive discretion, which could never be 
more properly exercised than where citizens were suffering without 
the authority of law, or, which was equivalent, under a law unau¬ 
thorized by the Constitution, and therefore null. In the case of Mar- 
bury and Madison, the federal judges declared that commissions, 
signed and sealed by the President, were valid, although not delivered. 
I deemed delivery essential to complete a deed, which, as long as it 
remains in the hands of the party, is as yet no deed; it is in posse 
only, but not in esse, and I withheld delivery of the commissions. 
They cannot issue a mandamus to the President or legislature, or to 
any of their officers. 15 Jefferson's Writings, (Mem. ed.), p. 21 4 . 

These departments, under our form of government, are co-ordinate 
in dignity. Neither of them is intended, by the theory of our Consti- 


Government, Independence of Departments of 187 

tution, to be subjected to the other. The President cannot be com¬ 
pelled to make a treaty, or to appoint anybody to office that he does 
not wish to. The Legislature cannot be compelled to pass any laws, 
and it alone can exercise that function. The Judiciary alone can con¬ 
strue them, when enacted, and enforce them by proper judgments of 
the various courts. Mr. Justice Wayne has advanced this idea in 
very appropriate terms. “The departments of the Government are 
legislative, executive, and judicial. They are co-ordinate in degree to 
the extent of the powers delegated to each of them. Each in the ex¬ 
ercise of its power is independent of the other, but all rightfully done 
by either is binding upon the others. The Constitution is supreme 
over all of them, because the people who ratified it have made it so.” 
Miller's Const, p. 89. 

Independence of the Departments of Government 

This question became acute in the trial of Aaron Burr for 
treason, in which the question as to whether or not a subpoena 
duces tecum could issue against the President. Mr. Marshall, 
then Chief Justice, thought it could, and his opinion in the 
case gives his view, while Mr. Jefferson, who was then Presi¬ 
dent, gave his in a letter to the Attorney General, and among 
other things, says: 

“The leading principle of our Constitution is the independ¬ 
ence of the legislative, executive and judiciary of each other, 
and none are more jealous of this than the judiciary. But 
would the executive be independent of the judiciary, if he 
were subject to the commands of the latter, and to imprison¬ 
ment for disobedience, if the several courts could bandy him 
from pillar to post, keep him constantly trudging from north 
to south and east to west, and withdraw him entirely from 
his constitutional duties? The intention of the Constitution, 
that each branch should be independent of the others, is fur¬ 
ther manifested by the means it has furnished to each, to pro¬ 
tect itself from enterprises of force attgThpted on them by the 
others, and to none has it given more effectual or diversified 
means than to the executive.” 11 Jefferson’s Writings, (mem. 
ed.), p. 241. 

Authority of Departments of Government 

The executive department of the government, to which is intrusted 
the control of the subject-matter, must necessarily determine all ques¬ 
tions appertaining to the employment and payment of such temporary 
agents, and the exigency which demands their employment. The secre¬ 
tary of the navy represents the president, and exercises his power on 
the subjects confided to his department. He is responsible to the 
people and the law for any abuse of the powers intrusted to him. His 
acts and decisions on subjects submitted to his jurisdiction and con- 


188 Government, Balance of Powers , Checks and Balances 

trol by the constitution and laws, do not require the approval of any 
officer of another department to make them valid and conclusive. 
18 How. 96. 

Balance of Power Between Departments of Government 

The difference between the departments undoubtedly is, that the 
legislature makes, the executive executes and the judiciary construes 
the law; but the maker of the law may commit something to the dis¬ 
cretion of the other departments, and the precise boundary of this 
power is a subject of delicate and difficult inquiry, into which a court 
will not enter unnecessarily. 10 Wheat. 46. 

The departments of government are legislative, executive, and ju¬ 
dicial. They are co-ordinate in degree to the extent of the powers 
delegated to each of them. Each, in the exercise of its powers, is 
independent of the other, but all, rightfully done by either, is binding 
upon the others. The constitution is supreme over all of them, be¬ 
cause the people who ratified it have made it so; consequently, any¬ 
thing which may be done unauthorized by it is unlawful. 18 How. 348. 

Powers and Duties of Departments of Government 

There are many authorities conferred on the different departments 
of the government, which, for their due execution, require services 
and duties to be performed, which are not strictly appertaining to 
or developed upon any particular authority, business, or duty, has al¬ 
ways been deemed to possess the right to employ the proper persons 
to perform the same, as the appropriate means to carry into effect the 
required end; and also the right to allow persons so employed a 
suitable compensation. 1 Pet. 1; 7 Pet. 18; 7 Pet. 28. 

The head, of a department of the government has not a right to 
review the decision of his predecessor, allowing a credit, except to cor¬ 
rect some error of calculation; if he is of opinion that the allowance 
was wrongful, he must have a suit brought. 15 Pet. 377. 

The Department of the Interior 

The Department of the Interior is one of the executive depart¬ 
ments of the government. It was made so March 30, 1849. It is spe¬ 
cially charged with the supervision of certain executive bureaus. Its 
present jurisdiction is defined in sec. 441 of Rev. Stat. The govern¬ 
ment printing-office has never been placed under its jurisdiction by 
any express statute. 91 U. 8. 304. 

Checks and Balances 

Mr. Wilson, the President, in his book on Congressional Gov¬ 
ernment, thus speaks on the subject: 

The best rulers are always those to whom great power is entrusted 
in such a manner as to make them feel that they will surely be abun¬ 
dantly honored and recompensed for a just and patriotic use of it, and 
to make them know that nothing can shield them from full retribution 
for every abuse of it. 


Government, Change in Constitution 


189 


It is, therefore, manifestly a radical defect in our federal system that 
it parcels out power and confuses responsibility as it does. The main 
purpose of the Convention of 1787 seems to have been to accomplish 
this grievous mistake. The “literary theory” of checks and balances 
is simply a consistent account of what our constitution-makers tried 
to do; and those checks and balances have proved mischievous just to 
the extent to which they have succeeded in establishing themselves, 
as realities. It is quite safe to say that were it possible to call together 
again the members of that wonderful Convention to view the works of 
their hands in the light of the century that has tested it, they would 
be the first to admit that the only fruit of dividing power had been to 
make it irresponsible. 1 Wilson's Congressional Government, p. 284-5. 

It is something more than natural that the Convention of 1787 
should desire to erect a Congress which would not be subservient and 
an executive which would not be despotic. And it was equally to have 
been expected that they should regard an absolute separation of these 
two great branches of the system as the only effectual means for the 
accomplishment of that much desired end. It was impossible that they 
could believe that executive and legislative could be brought into close 
relations of co-operation and mutual confidence without being tempted, 
nay, even bidden, to collude. How could either maintain its inde¬ 
pendence of action unless each were to have the guaranty of the Con¬ 
stitution that its own domain should be absolutely safe from invasion, 
its own prerogatives absolutely free from challenge? “They shrank 
from placing sovereign power anywhere. They feared that it would 
create tyranny; George III. had been a tyrant to them, and come what 
might they would not make a George III.” They would conquer, by 
dividing, the power they so much feared to see in any single hand. 
Wilson’s Congressional Government, p. 309. 

Amendments and Changes of the Constitution 

Mr. Wilson concludes his book as follows: 

The charm of our constitutional ideal has now been long enough 
wound up to enable sober men who do not believe in political withcraft 
to judge what it has accomplished, and is likely still to accomplish, 
without further winding. The Constitution is not honored by blind 
worship. The m,ore open-eyed we become, as a nation, to its defects, 
and the prompter we grow in applying with the unhesitating courage 
of conviction all thoroughly-tested or well-considered expedients neces¬ 
sary to make self-government among us a straightforward thing of 
simple method, single, unrestrained power, and clear responsibility, 
the nearer will we approach to the second sense and practicable genius 
of the great and honorable statesmen of 1787. And the first step to¬ 
wards emancipation from the timidity and false pride which have led 
us to seek to thrive despite the defects of our national system rather 
than seem to deny its perfection is a fearless criticism of that system. 
When we shall have examined all its parts without sentiment, and 
gauged all its functions by the standards of practical sense, we shall 
have established anew our right to the claim of political sagacity; and 

1 Is this possible? To the Compiler it is inconceivable. 


190 


Government, Checks and Balances 


it will remain only to act intelligently upon what our opened eyes have 
seen in order to prove again the justice of our claim to political genius. 
Wilson's Congressional Government , pp. 332-3. 

Checks and Balances 

So far as the compiler recalls, Mr. Wilson is the only American 
president, statesman, or even writer or public speaker of any 
notoriety, who opposes the American system of government, by 
which governmental power is divided, and the system of checks 
and balances established by the Constitution. The division of 
powers and checks and balances to him was a grievous mistake. 
He believes we have progressed in spite of, and not by reason 
of, this part of our system. He believes that these provisions 
are and will be disregarded by those who administer the gov¬ 
ernment. He believes the Constitution has been and will con¬ 
tinue to be amended without constitutionally amending it. Mr. 
Wilson believes with Mr. Bagehot that this division of powers 
was a grievous and basic error in the formation of our govern¬ 
ment. Strange as it may seem, most of those statesmen who 
constructed and planned, as Well as those who have construed, 
enforced and executed the Constitution, believe this to be the 
crowning virtue of our system of government. See the excerpts 
from the greatest American and English statesmen, which pre¬ 
cede and follow Mr. Wilson’s criticism. This book of his is in¬ 
deed a “fearless” and severe criticism of our government. 

Mr. Jefferson thus points out the blessings of the system: 

“It is a fatal heresy to suppose that either our State governments 
are superior to the federal, or the federal to the States. The people, 
to whom all authority belongs, have divided the powers of government 
into two distinct departments, the leading characters of which are 
foreign and domestic; and they have appointed for each a distinct set 
of functionaries. These they have made co-ordinate, checking and 
balancing each other, like the three cardinal departments in the in¬ 
dividual States: each equally supreme as to the power delegated to 
itself, and neither authorized ultimately to decide what belongs to 
itself, or to its coparcenor in government. As independent, in fact, as 
different nations, a spirit of forbearance and compromise, therefore, 
and not of encroachment and usurpation, is the healing balm of such a 
Constitution; and each party should prudently shrink from all approach 
to the line of demarcation, instead of rashly overleaping it, or throwing 
grapples ahead to haul to hereafter. But, finally, the peculiar happi¬ 
ness of our blessed system is, that in differences of opinion between 
these different sets of servants, the appeal is to neither, but to their 
employers peaceably assembled by their representatives in convention. 
This is more rational than the jus fortioris, or the cannon’s mouth, the 
ultima et sola ratio regum. 15 Jefferson's Writings, (Mem. ed.), pp. 
328-9. 


Government , Checks and Balances 


191 


Washington, in his farewell address, said: 

There is an opinion, that parties in free countries are useful checks 
upon the administration of the Government, and serve to keep alive 
the spirit of Liberty. This within certain bounds is probably true; and 
in Governments of a Monarchial cast, Patriotism may look with in. 
dulgence, if not with favor, upon the spirit of party. But in those of 
the popular character, in Governments purely elective, it is a spirit not 
to be encouraged. Writings of Washington, Yol. 12, 225. 

And, there being constant danger of excess, the effort ought to be, 
by force of public opinion, to mitigate and assuage it. A fire not to 
be quenched, it demands a uniform vigilance to prevent its bursting 
into a flame, lest, instead of warming, it should consume. 

It is important, likewise, that the habits of thinking in a free 
country should inspire caution, in those intrusted with its administra¬ 
tion, to confine themselves within their respective constitutional spheres, 
avoiding in the exercise of the powers of the department to encroach 
upon another. The spirit of encroachment tends to consolidate the 
powers of all the departments in one, and thus to create, whatever the 
form of government, a real despotism. A just estimate of that love 
of power, and proneness to abuse it, which predominates in the human 
heart, is sufficient to satisfy us of the truth of this position. The neces¬ 
sity of reciprocal checks in the exercise of political power by dividing 
and distributing it into different depositories, and constituting each the 
Guardian of the Public Weal against invasions by the others, has been 
evinced by experiments ancient and modern; some of them in our coun¬ 
try and under our own eyes. To preserve them must be as necessary 
as to institute them. Writings of Washington, Yol. 12, 226. 

Mr. Jefferson thus expresses his views to a friend: 

The way to have good and safe government, is not to trust it all to 
one, but to divide it among the many, distributing to every one exactly 
the functions he is competent to. Let the national government be en¬ 
trusted with the defence of the nation, and its foreign and federal rela¬ 
tions; the State governments with the civil rights, laws, police, and 
administration of what concerns the State generally; the counties with 
the local concerns of the counties, and each ward direct the interests 
within itself. It is by dividing and subdividing these republics from 
the great national one down through all its subordinations, until it 
ends in the administration of every man’s farm by himself; by placing 
under every one what his own eye may superintend, that all will be 
done for the best. What has destroyed liberty and the rights of man in 
every government which has ever existed under the sun? The gen¬ 
eralizing and concentrating all cares and powers into one body, no 
matter whether of the autocrats of Russia or France, or of the aristo¬ 
crats of a Venetian senate. U Jefferson's Writings, (Mem. ed.), p. 421. 

N 0TE .—Mr. Wilson evidently does not believe in this same kind of govern¬ 
ment, in which Washington and Jefferson believed.. 

The elementary republics of the wards, the county republics, the 
State republics, and the republic of the Union, would form a gradation 
of authorities, standing each on the basis of law, holding every one its 
delegated share of powers, and constituting truly a system of funda- 


192 


Government, Checks and Balances 


mental checks and balances for the government. Where man is a 
sharer in the direction of his ward-republic, or of some of the higher 
ones, and feels that he is a participator in the government of affairs, 
not merely at an election one day in the year, but every day; when 
there shall not be a man in the State who will not be a member of some 
one of its councils, great or small, he will let the heart be torn out of 
his body sooner than his power be wrested from him by a Caesar or a 
Bonaparte. How powerfully did we feel the energy of this organiza¬ 
tion in the case of embargo? I felt the foundations of the government 
shaken under my feet by the New England township. 14 Jefferson's 
Writings , (Mem. ed.), p. 422. 

Mr. Adams and Mr. Jefferson had much correspondence on 
the absolute powers of government, the distribution of, and the 
checks and balances Mr. Adams thus writes to Mr. Jeffer¬ 
son : 

You ask, how it has happened that all Europe has acted on the prin¬ 
ciple, “that Power was Right.” I know not what answer to give you, 
but this, that Power always sincerely, conscientiously, de tres bon foi, 
believes itself right. Power always thinks it has a great soul, and vast 
views, beyond the comprehension of the weak; and that it is doing God 
service, when it is violating all His laws. Our passions, ambition, 
avarice, love, resentment, etc., possess so much metaphysical sublety, 
and so much overpowering eloquence, that they insinuate themselves 
into the understanding and the conscience, and convert both to their 
party; and I may be deceived as much as any of them, when I say, that 
Power must never be trusted without a check. 14 Jefferson's Writings , 
(Mem. ed.). pp. 426-7. 

Mr. Black thus gives the origin of the system: 

The idea of an apportionment of the powers of government, and of 
their separation into three co-ordinate departments, is not a modern in¬ 
vention. It was suggested by Aristotle in his treaties on Politics, and 
was not unfamiliar to the more advanced of the medieval jurists. But 
the importance of this division of power, with the principle of classifi¬ 
cation, were never fully apprehended, in theory, until Montesquieu gave 
to the world his great work on the “Spirit of the Laws.” Black on Con¬ 
stitutional Laws, 74* 

Judge Venable thus speaks of this theory of government: 

The theory of checks and balances came from Montesquieu, whose 
views were adopted and popularized by Blackstone. Montesquieu 
thought he had discovered the perfection of an adjustment in the Brit¬ 
ish Constitution. There he found what he supposed to be a system of 
checks and balances; the powers were distributed, according to their 
nature as legislative, executive and judicial, amongst three deposi¬ 
taries; each was able to protect itself against the others. The classes 
of society were also balances against one another in the bi-chamber 
organization of parliament. The diffusion of limited powers of legisla¬ 
tion and administration over the country amongst the shires and towns,, 
prevented the encroachment of the central power. At this point it 
touched the theory of local self-government. This elaborate and nice 


Government, Checks and Balances 


193 


contrivance made a sort of equilibrium; and, this equilibrium being 
preserved, liberty and progress were reasonably safe. Richard M. Ven¬ 
able, in Report of American Bar Assocation, Vol. 8, 254. 

The theory of equilibrated adjustments between state and nation is 
based on the analogy between centrifugal and centripetal forces, and the 
necessity of their balance in order to preserve a true orbital movement. 
This is elaborately discussed in the Federalist. It propounded the doc¬ 
trine that the federal government, if too much power was committed to 
it, would destroy the states and lead to monarchy and absolutism. But 
if too much power was left to the states, they would drift from their 
moorings, and anarchy would result. It was supposed to be estab¬ 
lished by the history of ancient and medieval confederations. The re¬ 
written history of federal governments, however, shows deeper causes 
for their disruption than any mere want of balance between central and 
confederated governments. This theory had little to do with the par¬ 
tition of powers made by the constitution, but did yeoman’s service in 
procuring its ratification, and has always been popular. One of the 
few comparisons which seems never to be forgotten by the orator, 
or to pall on the popular taste, is that which likens the Union to the 
solar system. Richard M. Venable, in Report of American Bar Associa¬ 
tion, Vol. 8, 225. 

From the very settlement of America there had been a partition of 
powers. During the colonial period matters of imperial concern had 
belonged to the imperial government, and matters of local concern to 
the colonies. There was unquestionably a power in the crown to revise 
and veto local measures, but the power was not systematically exercised. 
The colonists continued to regulate their local affairs with only oc¬ 
casional interferences from beyond the sea. The sentiment that they 
had the right to do so grew stronger and stronger; and interferences 
from England, which gave offense to this sentiment, did much to create 
the alienation from the mother country which culminated in the Revo¬ 
lution. Richard M. Venable, in Report of American Bar Association, 
Vol. 8, 236. 

The Articles of Confederation for the first time made an express 
delegation of powers to the national government; but they did not 
confer on it the essential power of regulating commerce, and by them 
the impracticable method of acting by requisitions on the states was 
established. The total collapse of this government was due more to 
the defective partition of powers between it and the states, than to the 
anomalous and amorphous character of its structure as a government. 
Richard M. Venable, in Report of American Bar Association, Vol. 8, 
236-7. 

The convention, therefore, in making the partition of powers con¬ 
tained in the constitution, merely registered a public opinion so univer¬ 
sal that there was little or no dissent. The partition was actually 
made by an historical evolution, and was not the intellectual creation 
of any man of body of men. Richard M. Venable, in Report of Ameri¬ 
can Bar Association, Vol. 8, 238. 

According to the Dred Scott case, the constitution recognized and 
protected property in slaves. To hold that the President could under 
the war power liberate slaves by proclamation, was to hold that a prop- 


194 


Government , Checks and Balances 


erty recognized and protected by one part of the constitution could be 
destroyed by implication from another part. The constitution gave to 
each state a right of representation in Congress. If the Southern 
States were still in the Union, it was impossible by any legitimate 
construction of the constitution to deny to them this right expressly 
granted in one part by powers implied from another part. 

The situation was rendered somewhat ludicrous by the apparent 
revolution in opinion North and South. During the war the South 
had said, “We are out of the Union and had the right to go out.” The 
North had said, “The South was not out of the Union and had no 
right to go out.” The war being over, the South says, “Very well, you 
have convinced us by very solid reasoning. Here we are without repre¬ 
sentatives, entitled, on your own view, to be readmitted to participation 
in the government. If we can not destroy the constitution, you can 
not suspend it.” Richard M. Venable, in Report of American Bar Asso - 
elation, Vol. 8, 244- 

In a single republic, all the power surrendered by the people is 
submitted to the administration of a single government; and the 
usurpations are guarded against by a division of the government into 
distinct and separate departments. In the compound republic of Amer¬ 
ica, the power surrendered by the people is first divided between two 
distinct governments, and then the portion allotted to each subdivided 
among distinct and separate departments. Hence a double security 
arises to the rights of the people. The different governments will con¬ 
trol each other, at the same time that each will be controlled by itself. 

It is of great importance in a republic not only to guard the society 
against the oppression of its rulers, but to guard one part of the 
society against the injustice of the other part. Different interests nec¬ 
essarily exist in different classes of citizens. If a majority be united 
by a common interest, the rights of the majority will be insecure. 
There are but two methods of providing against this evil: the one by 
creating a will in the community independent of the majority—that is, 
of the society itself; the other, by comprehending in the society so 
many separate descriptions of citizens as will render an unjust combi¬ 
nation of a majority of the whole very improbable, if not impracti¬ 
cable. The first method prevails in all governments possessing an 
hereditary or self-appointed authority. Madison in The Federalist, 
Vol. I, Number LI. 

Mr. Bryce thus points out some advantages: 

The Constitution was avowedly created as an instrument of checks 
and balances. Each branch of the National government was to restrain 
the others, and maintain the equipoise of the whole. The legislature 
was to balance the executive, and the judiciary both. The two houses 
of the legislature were to balance one another. The National govern¬ 
ment, taking all its branches together, was balanced against the State 
governments. As this equilibrium was placed under the protection of 
a document, unchangeable save by the people themselves, no one of the 
branches of the National government has been able to absorb or over¬ 
ride the others, as the House of Commons has overridden and sub- 


Government, Checks and Balances 


195 


jected the Crown and the House of Lords. Each branch maintains its 
independence, and can, within certain limits, defy the others. Bryce's 
American Commonwealth, Vol. I, 390. 

Now and then the centralizing process was checked. Georgia defied 
the Supreme court in 1830-32, and was not made to bend because the 
executive sided with her. South Carolina defied Congress' and the 
President in 1832, and the issue was settled by a compromise. Acute 
foreign observers then and often during the period that followed pre¬ 
dicted the dissolution of the Union. For some years before the out¬ 
break of the Civil War the tie of obedience to the National government 
was palpably loosened over a large part of the country. But during 
and after the war the former tendency resumed its action, swifter and 
more potent than before. Bryce's American Commonwealth, Vol. I, 
393. 

The dominance of the centralizing tendencies is not wholly or even 
mainly due to those amendments. It had begun before them. It would 
have come about, though less completely, without them. It has been 
due not only to these amendments but also— 

To the extensive interpretation by the judiciary of the powers which 
the Constitution vests in the National government. 

To the passing by Congress of statutes on .topics not exclusively 
reserved to the States, statutes which have sensibly narrowed the field 
of State action. 

To exertions of executive power, which, having been approved by 
the people, and not condemned by the courts, have passed into prece¬ 
dents. 

These have been the modes in which the centralizing tendency has 
shown itself and prevailed. Bryce's American Commonwealth, Vol. I, 
393-Jf. 

To expect any form of words, however weightily conceived, with 
whatever sanctions enacted, permanently to restrain the passions and 
interests of men is to expect the impossible. Beyond a certain point, 
you can not protect the people against themselves any more than you 
can to use the familiar American expression, lift yourself from the 
ground by your own boot-straps. Bryce's American Commonwealth, 
Vol. I, 396. 

To cling to the letter of a Constitution when the welfare of the 
country for whose sake the Constitution exists is at stake, would be to 
seek to preserve life at the cost of all that makes life worth living— 
propter vitam vivendi perdere caucas. 

Nevertheless the rigid Constitution of the United States has render¬ 
ed, and renders now, inestimable services. It opposes obstacles too 
rash and hasty change. It secures time for deliberation. It forces the 
people to think seriously before they alter it or pardon a transgression 
of it. Bryce's American Commonwealth, Vol. I, 396. 

President Wilson thus sets forth the statement of the Elder 
Adams and others as to our checks and balances of Governmen¬ 
tal powers and functions: 

In 1814 John Adams in his letter to John Taylor. “Is there,” says 
Mr. Adams, “a constitution upon record more complicated with balances 


196 Government, Checks and Balances 

than ours? In the first place, eighteen states and some territories are 
balanced against the national government. * * * In the second 

place, the House of Representatives is balanced against the Senate, the 
Senate against the House. In the third place, the executive authority 
is, in some degree, balanced against the legislative. In the fourth 
place, the'judicial power is balanced against the House, the Senate, the 
executive power, and the state governments. In the fifth place, the 
Senate is balanced against the President in all appointments of office, 
and in all treaties. * * * In the sixth place, the people hold in 

their hands the balance against their own representatives, by biennial 
* * * elections. In the seventh place, the legislatures of the several 

states are balanced against the Senate by sextennial elections. In the 
eighth place, the electors are balanced against the people in the choice 
of the President. Here is a complicated refinement of balances, which, 
for anything I recollect, is an invention of our own and peculiar to 
us.” Wilson's Congressional Government, pp. 12, 13. 

There never was any great likelihood that the national government 
would care to take from the States their plainer prerogatives, but there 
was always a violent probability that it would here and there steal a 
march over the borders where territory like its own invited it to 
approbation; and it was for a mutual defense of such border-land that 
the two governments were given the right to halt upon one another. It 
was purposed to guard not against a revolution, but against unre¬ 
strained exercise of questionable powers. Wilson's Congressional Gov¬ 
ernment, p. Ilf. 

Manifestly the powers reserved to the States were expected to serve 
as a very real and potent check upon the Federal government; and yet 
we can see plainly enough now that this balance of state against na¬ 
tional authorities has proved, of all constitutional checks, the least 
effectual. The proof of the pudding is the eating thereof, and we can 
nowadays detect in it none of that strong flavor of state sovereignty 
which its cooks thought they were giving it. It smacks, rather, of 
federal omnipotence, which they thought to mix in only in very small 
and judicious quantities. “From the nature of the case,” as Judge 
Cooley says, “it was impossible that the powers reserved to the States 
should constitute a restraint upon the increase of federal power, to 
the extent that was at first expected. The federal government was 
necessarily made the final judge of its own authority, and the executor 
of its own will, and an effectual check to the gradual amplification of 
its jurisdiction.” Wilson's Congressional Government, p. 11. 

The States are absolutely debarred even from any effective defense 
of their plain prerogatives, because not they, but the national au¬ 
thorities, are commissioned to determine with decisive and unchal¬ 
lenged authoritativeness what state powers shall be recognized in each 
case of contest or of conflict. In short, one of the privileges which the 
States have resigned into the hands of the federal government is the 
all-inclusive privilege of determining what they themselves cdn do. 
Federal courts can annul state action, but state courts can not arrest 
the growth of congressional power. Wilson's Congressional Govern¬ 
ment, p. 24 . 


Government, Checks and Balances 


19 ? 


Judge Cooley can say without fear of contradiction that “The ef. 
fectual checks upon the encroachments of Federal upon State power 
must be looked for, not in the state power of resistance, hut in the 
choice of representatives, senators, and presidents holding just con¬ 
stitutional views, and in a federal supreme court with competent power 
to restrain all departments and all officers within the limits of their 
just authority, so far as their acts may become the subject of judicial 
cognizance.” 

Indeed it is quite evident that if Federal power be not altogether 
irresponsible, it is the federal judiciary which is the only effectual 
balance wheel of the whole system. The Federal judges hold in their 
hands the fate of state powers, and theirs is the only authority that can 
draw effective rein on the career of Congress. Wilson's Congressional 
Government, pp. 33, SJ. 

The legislature is the aggressive spirit. It is the motive power of 
the government, and unless the judiciary can check it, the courts are 
of comparatively little worth as balance wheels in the system. It is 
the subtle, stealthy, almost imperceptible encroachments of policy, of 
political action, which constitute the precedents upon which additional 
prerogatives are generally reared; and yet these are the very encroach¬ 
ments with which it is the hardest for the courts to deal, and con¬ 
cerning which, accordingly, the federal courts have declared themselves 
unauthorized to hold any opinions. Wilson's Congressional Govern . 
ment, p. 36. 

But besides and above all this, the national courts are for the most 
part in the power of Congress. Even the Supreme Court is not beyond 
its control; for it is the legislative privilege to increase, whenever 
the legislative will so pleases, the number of judges on the supreme 
bench,—to “dilute the Constitution,” as Webster once put it, “by 
creating a court which shall construe away its provisions;” and 
this on one memorable occasion it did choose to do. In 
December, 1869, the Supreme Court decided against the constitution¬ 
ality of Congress’s pet Legal Tender Acts; and in the following March 
a vacancy on the bench opportunely occurring, and a new justiceship 
having been created to meet the emergency, the Senate gave the Presi¬ 
dent to understand that no nominee unfavorable to the debated acts 
would be confirmed, two justices of the predominant party’s way of 
thinking were appointed, the hostile majority of the court was outvoted, 
and the obnoxious decision reversed. Wilson's Congressional Govern¬ 
ment, p. 38. 

Mr. Benton, in an address before the American Bar Asso¬ 
ciation, said: 

The original idea of sovereignty was embodied in that of a king 
who exercised all the functions of government, making law, applying 
it, and executing as well. That gave place to other crude ideas of a 
parliament which should be omnipotent and subject to no control. The 
developments of enlightened experience have shown that parliaments 
or legislatures should also be regulated and controlled by law, and that 
the function of making laws should be kept distinct from that of de- 


198 


Government, Checks and Balances 


ciding contests or applying law, hence we have express provisions in 
the constitutions of many states prohibiting the departments of gov¬ 
ernment from encroaching upon the functions of others. This separa¬ 
tion and co-ordination of the different departments of government is 
the improvement which republicanism is now making upon the prin¬ 
ciples of government. It is the contribution of our day to constitu¬ 
tional law. Reuben C. Benton, in Report of American Bar Association, 
Vol. 8, 276. 

The great Frenchman, Tocqueville, looking at our institutions, was 
amazed at the simple fact. In his work upon “Democracy in America” 
he uses the striking simile, in describing the willingness and insistence 
of the American people in putting fetters upon their own action, thus: 
“It was a wild horse, bitting and bridling itself, and submitting to 
an owner and master.” 

That is the idea that underlies this partition of powers between 
our Federal and the State Governments. That is the secret of the 
power of the American Government, which, after all criticisms, is the 
most beneficent and progressive government in the world. 

Daniel Webster is reported to have said once to Lord Ashburton: 
“We have not copied from Greece or Italy; we have copied from the 
Creator, and our system is the solar system. Jupiter has its own orbit. 
Saturn has its own orbit. The Earth has its, and the Moon its. Yet 
the Sun holds them each in its own orbit while coursing majestically 
in the greater.” Discussion of Mr. Venable's Paper, Report of Ameri¬ 
can Bar Association, Vol. 8, 14. 

Mr. Taft thus speaks of the distribution of the States and 
Federal powers 

The plan of Washington and his associates was to create a nation 
to consist of a central government and state governments. The central 
government was to have the power over foreign relations without inter¬ 
ference by the states, complete power over war and peace, independent 
power to tax and raise money, and the absolute power over commerce, 
foreign and national. The states retained the wide field of local gov¬ 
ernment. To this balance of authority is due the permanence of our 
Republic. An attempt to govern from Washington the home affairs of 
the people in forty-eight different states by acts of Congress and execu¬ 
tive order would have severed the union into its parts. An attempt to 
give the national government to brush the doorsteps of the people of a 
state in parochial matters and in a local atmosphere which must be 
breathed in order to be understood, would have created a dissatisfac¬ 
tion and a fatal gnawing at the bond between the states. Confedera¬ 
tions like ours have usually gone to destruction either through the 
expansion of the national authority into an arbitrary and tactless exer¬ 
cise of power, or through the paralyzing of needed national strength 
by the encroachment of the constituent states. Our Constitution has 
maintained its balance, and that is why we are stronger to-day than 
we ever were in our history. The Constitutional Review, Vol. I, 68. 


Government, State and Federal, Dependency of 199 

State and Federal Governments Dependent Each on the Other 

Mr. Madison thus states the relations: 

The State government will have the advantage of the Federal gov- 
eminent, whether we compare them in respect to the immediate de¬ 
pendence of the one on the other; to the weight of personal influence 
which each side will possess; to the powers respectively vested in them; 
to the predilection and probate support of the people; to the disposition 
and faculty or resisting and frustrating the measures of each other. 

The State governments may be regarded as constituent and essential 
parts of the Federal government; whilst the latter is nowise essential 
to the operation or organization of the former. Without the interven¬ 
tion of the State legislatures, the President of the United States can 
not be elected at all. They must in all cases have a great share in 
his appointment, and will, perhaps, in most cases, of themselves deter¬ 
mine it. The Senate will be elected absolutely and exclusively by the 
State legislatures. Even the House of Representatives, though drawn 
immediately from the people, will be chosen very much under the in¬ 
fluence of that class of men, whose influence over the people obtains for 
themselves an election into the State legislatures. Thus, each of the 
principal branches of the federal government will owe its existence 
more or less to the favor of the State governments, and must conse¬ 
quently feel a dependence, which is much more likely to beget a dispo¬ 
sition too obsequious than too overbearing towards them. On the other 
side, the component parts of the State governments will in no instance 
be indebted for their appointment to the direct agency of the Federal 
government, and very little, if at all, to the local influence of its 
members. Madison, in The 'Federalist, Vol. I, Number XLV. 

The powers delegated by the proposed Constitution to the Federal 
government are few and defined. Those which are to remain in the 
State governments are numerous and indefinite. The former will be 
exercised principally on external objects, as war, peace, negotiation, 
and foreign commerce; with which last the power of taxation will, for 
‘the most part, be connected. The powers reserved to the several 
States will extend to all the objects which, in the ordinary course of 
affairs, concern the lives, liberties, and properties of the people, and 
the internal order, improvement, and prosperity of the State. 

The operations of the Federal government will be most extensive 
and important in times of war and danger; those of the State govern¬ 
ments, in times of peace and security. As the former periods will 
probably bear a small proportion to the latter, the State governments 
will here enjoy another advantage over the federal government. The 
more adequate, indeed, the Federal powers may be rendered to the 
national defense, the less frequent will be those scenes of danger which 
might favor their ascendancy over the governments of the particular 
States. 

If the new Constitution be examined with accuracy and candor, it 
will be found that the change which it proposes consists much less in 
the addition of NEW POWERS to the Union, than in the invigoration 
of its ORIGINAL POWERS. Madison, in The Federalist, Vol. I, Num¬ 
ber XLV. 


200 Government, State and Federal, Dependency of 

The Federal and State governments are in fact but different agents 
and trustees of the people, constituted with different powers, and de¬ 
signed for different purposes. The adversaries of the Constitution 
seem to have lost sight of the people altogether in their reasonings on 
this subject; and to have viewed these different establishments, not 
only as mutual rivals and enemies, but as uncontrolled by any common 
superior in their efforts to usurp the authorities of each other. These 
gentlemen must here be reminded of their error. They must be told 
that the ultimate authority, wherever the derivative may be found, 
resides in the people alone, and that it will not depend merely on the 
comparative ambition or address of the different governments, whether 
either, or which of them, will be able to enlarge its sphere of jurisdic¬ 
tion at the expense of the other. Truth, no less than decency, requires 
that the event in every case should be supported to depend on the 
sentiments and sanction of their common constituents. Madison in 
The Federalist, Vol. I, Number XLVI. 

It has been already proved that the members of the federal will be 
more dependent on the members of the State governments, than the 
latter will be on the former. It has happened also, that the pre¬ 
possessions of the people, on whom both will depend, will be more on 
the side of the State governments, than of the Federal government. So 
far as the disposition of each towards the other may be influenced by 
these causes, the State governments must clearly have the advantage. 
But in a distinct and very important point of view, the advantage will 
lie on the same side. The prepossessions, which the members them¬ 
selves will carry into the Federal government, will generally be favor¬ 
able to the States; whilst it will rarely happen, that the members of 
the State governments will carry into the councils a bias in favor of 
the general government. A local spirit will infallibly prevail much 
more in the members of Congress, than a national spirit will prevail in 
the legislatures of the particular States. Every one knows that a great 
proportion of the errors committed by the State legislatures proceeds^ 
from the disposition of the members to sacrifice the comprehensive and 
permanent interest of the State to the particular and separate views 
of the counties or districts in which they reside. Madison in The 
Federalist, Vol. I, Number XLVI. 

The only refuge left for those who prophesy the downfall of the 
State governments is the visionary supposition that the Federal govern¬ 
ment may previously accumulate a military force for the projects of 
ambition. Madison in The Federalist, Vol. I, Number XLVI. 

The powers proposed to be lodged in the Federal government are 
as little formidable to those reserved to the individual States, as they 
are indispensably necessary to accomplish the purposes of the Union; 
and that all those alarms which have been sounded, of a meditated 
and consequential annihilation of the State governments, must, on the 
most favorable interpretation, be ascribed to the chimerical fears of 
the authors of them. Madison in The Federalist, Vol. I, Number 
XLVI. 


Government, Actions Against 


201 


Actions Against United States Government 

It was held in Arrendo’s case, 6 Pet. 711, that, by consenting to be 
sued, the United States had submitted to judicial action, and consid¬ 
ered the suit as of a purely judicial character, which the courts were 
bound to decide as between man and man litigating the same subject- 
matter; and that, in thus deciding, the courts were restricted within 
the limits, and governed by the rules Congress had prescribed. 13 How. 
251. 

The United States, of course, is not suable, except with its consent. 
This is an attribute of sovereignty. It may, however, sue in its own, 
or State Courts. 1U U.S. 538; 162 U. 8. 399; Cooley Const. 133; 106 
U. 8. 196. 

Judge Story, in his work on Constitutional law, says: 

Mr. Tucker distinguished the word “cases” used in the one clause 
and the word “controversies” used in another. The former he deems 
to include all suits, criminal as well as civil; the latter as including 
such only as are of a civil nature. As last applied, controversies 
“seem,” says he, “particularly appropriated to such disputes as might 
arise between the United States and any one or more States respecting 
territorial or fiscal matters, or between the United States and their 
debtors, contractors, and agents. This construction is confined by the 
application of the word in the ensuing clauses, where it evidently refers 
to dispute of a civil nature only, such, for example, as may arise be¬ 
tween two or more States, or between citizens of different States, or 
between a State and the citizens of another State,” etc. 1 Tucker’s 
Black. Comm. App. 420, 421. Mr. Justice Iredell, in his opinion in Chis¬ 
holm v. Georgia, 2 Dali. R. 419, 431, 432, gives the same construction 
to the word “controversies,” confining it to such as are of a civil nature 
Story on the Constitution, Vol. V, p. Jp3, note. 

It may be asked, then, whether the citizens of the United States 
are wholly destitute of remedy, in case the national government should 
invade their rights, either by private injustice and injuries, or by 
public oppression? To this it may be answered, that in the general 
sense, there is a remedy in both cases. In regard to public oppres¬ 
sions, the whole structure of the government is so organized as to 
afford the means of redress, by enabling the people to remove public 
functionaries who abuse their trust, and to substitute others more 
faithful and more honest in their stead. If the oppression be in the 
exercise of powers clearly constitutional, and the people refuse to in¬ 
terfere in this manner, then, indeed, the party must submit to the 
wrong, as beyond the reach of all human power; for how can the people 
themselves, in their collective capacity, be compelled to do justice and 
to vindicate the rights of those who are subjected to their sovereign 
control 9 If the oppression be in the exercise of unconstitutional pow¬ 
ers. then the functionaries who wield them are amenable for their in¬ 
jurious acts to the judicial tribunals of the country, at the suit of the 
oppressed. Story on the Constitution, Vol. V, p. Ifl5, § 1676. 

Congress have never yet acted upon the subject so as to give judicial 
redress for any non-fulfilment of contracts by the national government. 
Cases of the most cruel hardship and intolerable delay have already oc. 


2()2 Government of U. 8As Party to Suits 

curred, in which meritorious creditors have been reduced to grievous 
suffering, and sometimes to absolute ruin, by the tardiness of a justice 
which has been yielded only after the humble supplications of many 
years before the legislature. One can scarcely refrain from uniting in 
the suggestion of a learned commentor, that in this regard the consti¬ 
tutions, both of the National and State governments, stand in need of 
some reform to quicken the legislative action in the administration of 
justice; and that some mode ought to be provided by which a pecun¬ 
iary right against the State or against the United States might be es- 
certained and established by the judicial sentence of the same court; 
and when so ascertained and established, the payment might be en¬ 
forced from the national treasury by an absolute appropriation. Story 
on the Constitution, Vol. V, p. Jfll, § 1678. 

United States As a Party to Actions 

The United States, being a sovereign and independent nation, is not 
liable to be made defendant in any suit or proceeding without its own 
consent, either in one of its own courts or in the courts of a state. 
But it may, as plaintiff, institute proceedings against an individual or 
a state in any proper court. Black on Constitutional Law, 142. 

Nature of the American Union 

Mr. Black thus speaks of the Union: 

The United States of America is a nation, possessing the character 
and attributes of sovereignty and independence. 

Politically speaking, the United States is a union of separate com. 
monwealths, called “states.” Territorially it includes: 

(a) The states. 

(b) The territories. 

(c) The District of Columbia. 

Amendments proposed in either method must be ratified by the 
three-fourths of the states; and this may be done in either of two ways, 
according as one or the other mode may be proposed by Congress, viz.: 

(a) By the legislatures of the states, acting as the representatives 
of the people. 

(b) By conventions held in each state for the purpose. 

Fifteen amendments to the Federal constitution have thus far been 
adopted. Black on Constitutional Law, 42. 

“To Form a More Perfect Union” 

In a letter to Congress by "Washington, written by the unani¬ 
mous order of the Convention, it is said: 

“In all our deliberations on this subject we kept constantly in our 
view that which appears to us the greatest interest of every true 
American, the consolidation of our Union—in which is involved our 
prosperity, felicity, safety, perhaps our national existence.” 

It is clear that it was the intention of the Constitution that the 
former union should continue more perfect, more consolidated, and be 
perpetuated. Foster on the Constitution, Vol. 1, p. 96. 


203 


Government—The Union, Who Are Its Friends? 

The Union—Who Are Its Real Friends? 

Mr. Madison thus answers the question: 

Not those who charge others with not being its friends, whilst 
their own conduct is wantonly multiplying its enemies. 

Not those who favor measures which, by pampering the spirit of 
speculation within and without the Government, disgust the best 
friends of the Union. 

Not those who promote unnecessary accumulations of the debt of 
the Union, instead of the best means of discharging it as fast as pos¬ 
sible, thereby increasing the causes of corruption in the Government, 
and the pretext for new taxes under its authority; the former under¬ 
mining the confidence, the latter alienating the affection, of the people. 

Not those who study, by arbitrary interpretations and insiduous 
precedents, to pervert the limited Government of the Union into a gov¬ 
ernment of unlimited discretion, contrary to the will and subversive of 
the authority of the people. 

Not those who avow or betray principles of monarchy and aristoc¬ 
racy, in opposition to the republican principles of the Union and the 
republican spirit of the people, or who espouse a system of measures 
more accommodated to the depraved examples of those hereditary 
forms than to the true genius of our own. 

Not those, in a word, who would force on the people the melancholy 
duty of choosing between the loss of the Union and the loss of what 
the Union was meant to secure. 

The real FRIENDS of the Union are those who are friends to the 
authority of the people, the sole foundation on which the Union rests; 

Who are friends to liberty, the great end for which the Union was 
formed; 

Who are friends to the limited and republican system of govern¬ 
ment, the means provided by that authority for the attainment of 
that end; 

Who are enemies to every public measure that might smooth the 
way to hereditary government, for resisting the tyrannies of which 
the Union was first planned, and for more effectually excluding which 
it was put into its present form; 

Who, considering a public debt as injurious to the interests of the 
people and baneful to the virtue of the Government, are enemies to 
every contrivance for unnecessary increasing its amount, or protract¬ 
ing its duration, or extending its influence. 

In a word, those are the real friends of the Union who are friends 
to that republican policy throughout, which is the only cement for the 
union of a republican people, in opposition to a spirit of usurpation 
and monarchy, which is the menstruum most capably of dissolving it. 
4 Writings of Madison, pp. 480-481. 

Our Relations to and With Foreign Nations 

Washington, in his Farewell Address, thus advised us: 

Observe good faith and justice towards all Nations; cultivate peace 
and harmony with all. Religion and Morality enjoin this conduct; and 
can it be, that good policy does not equally enjoin it? It will be worthy 


204 


Government of U. S., Relation to Other Nations 


of a free, enlightened, and, at no distant period, a great Nation, to 
give to mankind the magnanimous and too novel example of a people 
always guided by an exalted justice and benevolence. Who can doubt, 
that, in the course of time and things, the fruits of such a plan would 
richly repay any temporary advantages which might be lost by a 
steady adherence to it? Writings of Washington, Yol. 12, 228. 

The Nation, which indulges towards another an habitual hatred, 
or an habitual fondness, is in some degree a slave. / It is a slave to its 
animosity or to its affection, either of which is sufficient to lead it 
astray from its duty and its interest. Antipathy in one nation against 
another disposes each more readily to offer insult and injury, to lay 
hold of slight causes of umbrage, and to be haughty and intractable, 
when accidental or trifling occasions of dispute occur. Hence fre¬ 
quent collisions, obstinate, envenomed, and bloody contests. The Na¬ 
tion, prompted by ill-will and resentment, sometimes impels to war 
the Government, contrary to the best calculations of policy. Writings 
of Washington, Yol. 12, 229. 

Against the insidious wiles of foreign influence (I conjure you to 
believe me, fellow-citizens,) the jealousy of a free people ought to be 
constantly awake; since history and experience prove that foreign 
influence is one of the most baneful foes of Republican Government. 
But that jealousy, to be useful, must be impartial; else it becomes the 
instrument of the very influence to be avoided, instead of a defence 
against it. Excessive partiality for one foreign nation, and excessive 
dislike of another, cause those whom they actuate to see danger on one 
side, and serve to veil and even second the arts of influence on the 
other. Writings of Washington, Yol. 12, 230-1. 

The great rule of conduct for us, in regard to foreign nations, is, in 
extending our commercial relations, to have with them as little political 
connection as possible. So far as we have already formed engage¬ 
ments, let them be fulfilled with perfect good faith. Here let us stop. 

Europe has a set of primary interests, which to us have none, or 
very remote relation. Hence she must be engaged in frequent con¬ 
troversies, the causes of which are essentially foreign to our con¬ 
cerns. Hence, therefore, it must be unwise in us to implicate ourselves, 
by artificial ties, in the ordinary vicissitudes of her politics, or the ordi¬ 
nary combinations and collisions of her friendships or enmities. 

Our detached and distant situation invites and enables us to pursue 
a different course. Writings of Washington, Yol. 12, 231. 

Why, by interweaving our destiny with that of any part of Europe, 
entangle our peace and prosperity in the toils of European ambition, 
rivalship, interest, humor, or caprice? 

It is our true policy to steer clear of permanent alliances with any 
portion of the foreign world; so far, I mean, as we are now at liberty 
to do it; for let me not be understood as capable of patronizing in¬ 
fidelity to existing engagements. I hold the maxim no less applicable 
to public than to private affairs, that honesty is always the best policy. 
I repeat it, therefore, let those engagements be observed in their gen¬ 
uine sense. But, in my opinion, it is unnecessary and would be unwise 
to extend them. Writings of Washington, Yol. 12, 231-2. 


Government—The Union , Preserve It 


205 


It is folly in one nation to look for disinterested favors from anoth¬ 
er; that it must pay with a portion of its independence for whatever 
it may accept under that character; that, by such acceptance, it may 
place itself in the condition of having given equivalents for nominal 
favors, and yet of being reproached with ingratitude for not giving 
more. There can be no greater error than to expect or calculate upon 
real favors from nation to nation. It is an illusion, which experience 
must cure, which a just pride ought to discard. Writings of Washing - 
ton, Vol. 12, 232-2. 

The Union—Preserve It 

% 

Washington, in his Farewell Address, thns imposes this duty 
upon us: 

The unity of Government, which constitutes you one people, is also 
dear to you. It is justly so; for it is a main pillar in the edifice of 
your real independence, the support of your tranquillity at home, your 
peace abroad; of your safety; of your prosperity; of that very Liberty, 
which you so highly prize. But as it is easy to foresee, that, from 
different causes and from different quarters, much pains will be taken, 
many artifices employed, to weaken in your minds the conviction of 
this truth; as this is the point in your political fortress against which 
the batteries of internal and external enemies will be most constantly 
and actively (though often covertly and insidiously) directed, it is of 
infinite moment, that you should properly estimate the immense value 
of your national Union to your collective and individual happiness; 
that you should cherish a cordial, habitual, and immovable attachment 
to it; accustoming yourselves to think and speak of it as of the Pal¬ 
ladium of your political safety and prosperity; watching for its preser¬ 
vation with jealous anxiety; discountenancing whatever may suggest 
even a suspicion, that it can in any event be abandoned; and indig¬ 
nantly frowning upon the first dawning of every attempt to alienate 
any portion of our country from the rest, or to enfeeble the sacred 
ties which now link together the various parts. Writings of Wash¬ 
ington, Vol. 12, 218. 

In contemplating the causes, which may disturb our Union, it occurs 
as matter of serious concern, that any ground should have been fur¬ 
nished for characterizing parties by Geographical discriminations, North*, 
ern and Southern, Atlantic and Western; whence designing men may 
endeavor to excite a belief, that there is a real difference of local in¬ 
terests and views. One of the expedients of party to acquire influence, 
within particular districts, is to misrepresent the opinions and aims 
of other districts. 1 Writings of Washington, Vol. 12, 221. 

The United States a Nation 

The United States, considered as a unit, possesses all the charac¬ 
teristics and attributes, and is entitled to the designation, of a nation. 
It is composed of one people, united by language, customs, laws, and 

VThe above was really prophetic of brought on this. The Missouri compro- 
the war between the states. It was mise led to a geographical division of 
really sectional strife, caused from a parties, 
division of parties geographically, that 


206 


Government—The Union, History of 


institutions, as well as by birth on the soil or adoption into the family 
of native citizens. It has the character of an organized jural society, 
governed, in all things concerning the whole people, by one system of 
law and one constitution. It occupies a distinct portion of the earth’s 
surface. It acknowledges no political superior. It has also an in¬ 
herent and absolute power of legislaton. Black on Constitutional 
Laws , 17. 


History of the Union 


Judge Cooley thus states the history: 

Besides the tie uniting the several colonies through the Crown of 
Great Britain, there had always been a strong tendency to a more inti¬ 
mate and voluntary union, whenever circumstances of danger threat¬ 
ened them; and this tendency led to the New England Confederacy of 
1643; to the temporary Congress of 1690; to the plan of union agreed 
upon in Convention of 1754, but rejected by the Colonies as well as the 
Crown, to the Stamp Act Congress of 1765, and finally to the Continen¬ 
tal Congress of 1774. When the difficulties with Great Britain culmi¬ 
nated in actual war, the Congress of 1775 assumed to itself those pow¬ 
ers of external control which before had been conceded to the Crown 
or to the President, together with such other powers of sovereignty 
as it seemed essential a general government should exercise, and thus 
became the national government of the United Colonies. By this body, 
war was conducted, independence declared, treaties formed, and ad¬ 
miralty jurisdiction exercised. Cooley on Constitutional Limitations. 

The Constitution was ratified by conventions of delegates chosen 
by the people in eleven of the States, before the new government was 
organized under it; and the remaining two, North Carolina and Rhode 
Island, by their refusal to accept, and by the action of others in pro¬ 
ceeding separately, were excluded altogether from that national juris¬ 
diction which before had embraced them. This exclusion was not 
warranted by anything contained in the Articles of Confederation, 
which purported to be the articles of “perpetual union;” and the action 
of the eleven States in making radical revision of the Constitution, 
and excluding their associates for refusal to assent, was really revolu¬ 
tionary 1 in character, and not to be defended on the same ground of 
necessity on which all revolutionary action is justified, and which in 
this case was the absolute need, fully demonstrated by experience, of 
a more efficient general government. Cooley on Constitutional Limita¬ 
tions, 9. 


President of the United States, 
Mr. Van Buren, has said that the 
adoption of the Constitution which ex¬ 
cluded two States was an heroic though 
lawless act. Political Parties, p. 50. 
Mr. Madison treats of it in some 
length in The Federalist, No. 43. It 


is perfectly certain that the Articles 
of Confederation were dissolved or 
changed illegally by a practical revolu¬ 
tion. It required the consent of all 
the States to change the Articles and 
the consent of two was not obtained. 


Copy of 

CONSTITUTION OF THE UNITED STATES 

WE, THE PEOPLE OF THE UNITED STATES, IN ORDER TO FORM A MORE 
PERFECT UNION. ESTABLISH JUSTICE, INSURE DOMESTIC TRAN¬ 
QUILLITY, PROVIDE FOR THE COMMON DEFENSE, PROMOTE THE 
GENERAL WELFARE, AND SECURE THE BLESSINGS OF LIBERTY 
TO OURSELVES AND OUR POSTERITY, DO ORDAIN AND ESTAB¬ 
LISH THIS CONSTITUTION FOR THE UNITED STATES OF AMERICA. 

ARTICLE I 

Section 1. All legislative powers herein granted shall he vested in 
a Congress of the United States, which shall consist of a Senate and 
House of Representatives. 

Section 2. The House of Representatives shall he composed of 
members chosen every second year by the people of the several states, 
and the electors in each state shall have the qualifications requisite for 
electors of the most numerous branch of the state legislature. 

No person shall be a representative who shall not have attained to 
the age of twenty-five years, and been seven years a citizen of the 
United States, and who shall not, when elected, be an inhabitant of 
that state in which he shall be chosen. 

Representatives and direct taxes shall be apportioned among the 
several states which may be included within this Union, according to 
their respective numbers, which shall be determined by adding to the 
whole number of free persons, including those bound to service for a 
term of years, and excluding Indians not taxed, three-fifths of all 
other persons. 1 

The actual enumeration shall be made within three years after 
the first meeting of the Congress of the United States, and within 
every subsequent term of ten years, in such manner as they shall by law 
direct. The number of. representatives shall not exceed one for every 
thirty thousand, but each state shall have at least one representative, 
and \mtil such enumeration shall be made, the state of New Hamp¬ 
shire shall be entitled to choose three, Massachusetts eight, Rhode 
Island and Providence Plantations one, Connecticut five, New York six. 
New Jersey four, Pennsylvania eight, Delaware one, Maryland six, 
Virginia ten, North Carolina five, South Carolian five, and Georgia 
three. 

When vacancies happen in the representation from any state, the 
executive authority thereof shall issue writs of election to fill such 
vacancies. 

The House of Representatives shall choose their speaker and other 
officers; and shall have the sole power of impeachment. 

Section 3. The Senate of the United States shall be composed of 
two senators from each state, chosen by the legislature thereof, for 
six years; and each senator shall have one vote. (The above is changed 
by the seventeenth amendment.) 

Immediately after they shall be assembled in consequence of the 
first election, they shall be divided as equally as may be into three 
classes. The seats of the senators of the first class shall be vacated 

J The foregoing clause is amended by the 14th Amendment, 2nd section. 

207 


208 


The Constitution, Copy of 


at the expiration of the second year, of the second class at the expira¬ 
tion of the fourth year, and of the third class at the expiration of the 
sixth year, so that one-third may be chosen every second year; and 
if vacancies happen by resignation, or otherwise, during the recess 
of the legislature of any state, the executive thereof may make tempo¬ 
rary appointments until the next meeting of the legislature, which 
shall then fill such vacancies. 

No person shall he a senator who shall not have attained to the 
age of thirty years, and been nine years a citizen of the United States 
and who shall not, when elected, be an inhabitant of that state for 
which he shall be chosen. 

The vice-president of the United States shall be president of the 
Senate, but shall have no vote, unless they be equally divided. 

The Senate shall choose their officers, and also a president pro 
tempore, in the absence of the vice-president, or when he shall exercise 
the office of president of the United States. 

The Senate shall have the sole power to try all impeachments. 
When sitting for that purpose, they shall be on oath or affirmation. 
When the president of the United States is tried, the chief justice 
shall preside: and no person shall be convicted without the concur¬ 
rence of two-thirds of the members present. 

Judgment in cases of impeachment shall not extend further than 
to removal from office, and disqualification to hold and enjoy any office 
of honor, trust or profit under the United States: but the party con¬ 
victed shall nevertheless be liable and subject to indictment, trial, 
judgment and punishment, according to law. 

Section 4. The times, places, and manner of holding elections for 
senators and representatives shall be prescribed in each state by the 
legislature thereof; but the Congress may at any time by law make or 
alter such regulations, except as to the places of choosing senators. 

The Congress shall assemble at least once in every year, and such 
meeting shall be on the first Monday in December, unless they shall by 
law appoint a different day. 

Section 5. Each house shall be the judge of the elections, returns 
and qualifications of its own members, and a majority of each shall 
constitute a quorum to do business; but a smaller number may ad¬ 
journ from day to day, and may be authorized to compel the attendance 
of absent members, in such manner, and under such penalties as each 
house may provide. 

Each house may determine the rules of its proceedings, punish its 
members for disorderly behavior, and, with the concurrence of two- 
thirds, expel a member. 

Elach house shall keep a journal of its proceedings, and from time 
to time publish the same, excepting such parts as may in their judg¬ 
ment require secrecy; and the yeas and nays of the members of either 
house on any question shall, at the desire of one-fifth of those present, 
be entered on the journal. 

Neither house, during the session of Congress, shall, without the 
consent of the other, adjourn for more than three days, nor to any 
other place than that in which the two houses shall be sitting. 

Section 6. The senators and representatives shall receive a com¬ 
pensation for their services, to be ascertained by law, and paid out of 


209 


The Constitution, Copy of 

the treasury of the United States. They shall in all cases, except 
treason, felony and breach of the peace, be privileged from arrest dur¬ 
ing their attendance at the session of their respective houses, and in 
going to and returning from the same; and for any speech or debate 
in either house, they shall hot be questioned in any other place. 

No senator or representative shall, during the time for which he 
was elected, be appointed to any civil office under the authority of the 
United States, which shall have been created or the emoluments where- 
of shall have been increased during such time; and no person holding 
any office under the United States, shall be a member of either house 
during his continuance in office. 

Section 7. All bills for raising revenue shall originate in the 
house of representatives; but the senate may propose or concur with 
amendments as on other bills. 

Every bill which shall have passed the House of Representatives and 
the Senate, shall, before it become a law, be presented to the president 
of the United States; if he approve he shall sign it, but if not, he 
shall return it, with his objections to that house in which it shall have 
originated, who shall enter the objections at large on their journal, 
and proceed to reconsider it. If after such reconsideration two-thirds 
of that house shall agree to pass the bill, it shall be sent, together 
with the objections, to the other house, by which it shall likewise be 
reconsidered, and if approved by two-thirds of that house, it shall be¬ 
come a law. But in all such cases the votes of both houses shall be 
determined by yeas and nays, and the names of the persons voting for 
and against the bill shall be entered on the journal of each house 
respectively. If any bill shall not be returned by the president within 
ten days (Sundays excepted) after it shall have been presented to 
him, the same shall be a law, in like manner as if he had signed it, 
unless the Congress by their adjournment prevent its return, in which 
case it shall not be a law. 

Every order, resolution or vote to which the concurrence of the Sen¬ 
ate and House of Representatives may be necessary (except on a ques¬ 
tion of adjournment) shall be presented to the president of the United 
States; and before the same shall take effect, shall be approved by 
him, or being disapproved by him, shall be repassed by two-thirds of 
the Senate and House of Representatives, according to the rules and 
limitations prescribed in the case of a bill. 

Section 8. The Congress shall have power: To lay and collect 
taxes, duties, imposts and excise, to pay the debts and provide for the 
common defense and general welfare of the United States; but all 
duties, imposts and excises shall be uniform throughout the United 
States; 

To borrow money on the credit of the United States; 

To regulate commerce with foreign nations, and among the several 
states, and with the Indian tribes; 

To establish an uniform rule of naturalization, and uniform laws 
on the subject of bankruptcies throughout the United States; 

To coin money, regulate the value thereof, and of foreign coin, 
and fix the standard of weights and measures; 

To provide for the punishment of counterfeiting the securities and 
current coin of the United States; 

To establish post-offices and post-roads; 


210 


The Constitution, Copy of 


To promote the progress of science and useful arts, by securing 
for limited times to authors and inventors the exclusive right of their 
respective writings and discoveries; 

To constitute tribunals inferior to the ^supreme court; 

To define and punish piracies and felonies committed on the high 
seas, and offenses against the law of nations; 

To declare war, grant letters of marque and reprisal, and make 
rules concerning captures on land and water; 

To raise and support armies, but no appropriation of money to 
that use shall be for a longer term than two years; 

To provide and maintain a navy; 

To make rules for the government and regulation of the land and 
naval forces; 

To provide for calling forth the militia to execute the laws of the 
Union, suppress insurrections and repel invasions; 

To provide for organizing, arming, and disciplining, the militia, and 
for governing such part of them as may be employed in the service 
of the United States, reserving to the states respectively, the appoint¬ 
ment of the officers, and the authority of training the militia accord¬ 
ing to the discipline prescribed by Congress: 

To exercise exclusive legislation in all cases whatsoever, over such 
district (not exceeding ten miles square) as may, by cession of par¬ 
ticular states, and the acceptance of Congress, become the seat of the 
government of the United States, and to exercise like authority over 
all places purchased by the consent of the legislature of the state 
in which the same shall be, for the erection of forts, magazines, 
arsenals, dockyards, and other needful buildings:—And 

To make all laws which shall be necessary and proper for carrying 
into execution the foregoing powers, and all other powers vested by 
this constitution in the government of the United States, or in any 
department or officer thereof. 

Section 9. The migration or importation of such persons as any 
of the states now existing shall think proper to admit', shall not be pro¬ 
hibited by the Congress prior to the year one thousand eight hundred 
and eight, but a tax or duty may be imposed on such importation, not 
exceeding ten dollars for each person. 

The privilege of the writ of habeas corpus shall not be suspended, 
unless when in cases of rebellion or invasion the public safety may 
require it. 

No bill of attainder or ex post facto law shall be passed. 

No capitation, or other direct tax, shall be laid, unless in proportion 
to the census or enumeration hereinbefore directed to be taken. 

No tax.or duty shall be laid on articles exported from any state. 

No preference shall be given to any regulation of commerce or reve¬ 
nue to the ports of one state over those of another; nor shall vessels 
bound to, or from, one state, be obliged to enter, clear, or pay duties 
in another. 

No money shall be drawn from the treasury, but in consequence 
of appropriations made by law; and a regular statement and account 
of the receipts and expenditures of all public money shall be published 
from time to time. 


The Constitution, Copy of 


211 


No title of nobility shall be granted by the United States: and no 
person holding any office of profit or trust under them, shall, without 
the consent of the Congress, accept any present, emolument, office, or 
title, of any kind whatever, from any king, prince, or foreign state. 

Section 10. No state shall enter into any treaty, alliance, or con¬ 
federation; grant letters of marque and reprisal; coin money, or bills of 
credit; make any thing but gold and silver coin a tender in payment 
of debts; pass any bill of attainer, ex post facto law, or law impairing 
the obligations of contracts, or grant any title of nobility. 

No state shall, without the consent of the Congress, lay any im¬ 
posts or duties on imports or exports, except what may be absolutely 
necessary for executing its inspection laws; and the net produce of all 
duties and imposts, laid by any state on imports or exports, shall be 
for the use of the treasury of the United States; and all such laws 
shall be subject to the revision and control of the Congress. 

No state shall without the consent of Congress, lay any duty of 
tonnage, keep troops, or ships or car in time of peace, enter into any 
agreement or compact with another state, or with a foreign power, or 
engage in war, unless actually invaded, or in such imminent danger 
as will not admit of delay. 


ARTICLE II 

Section 1. The executive power shall be vested in a president of 
the United States of America. He shall hold his office during the term 
of four years, and, together with the vice-president, chosen for the 
same term, be elected, as follows: 

Each state shall appoint, in such manner as the legislature thereof 
may direct, a number of electors, equal to the whole number of sena¬ 
tors and representatives to which the state may be entitled in the con¬ 
gress: but no senator or representative, or person holding an office 
of trust or profit under the United States shall be appointed an 
elector. 1 

The Congress may determine the time of choosing the electors and 
the day on which they shall give their votes; which day shall be the 
same throughout the United States. 

No person except a natural-born citizen, or a citizen of the United 
States, at the time of the adoption of this constitution, shall be eligible 
to the office of president; neither shall any person be eligible to that 
office who shall not have attained to the age of thirty-five years, and 
been fourteen years a resident within the United States. 

In case of the removal of the president from office, or of his death, 
resignation, or inability to discharge the powers and duties of the 
said office, the same shall devolve on the vice-president, and the Con¬ 
gress may by law provide for the case of removal, death, resignation 
or inability, both of the president and vice-president, declaring what 
officer shall then act as president, and such officer shall act accordingly, 
until the disability be removed, or a president shall be elected. 

The president shall, at stated times, receive for his services, a com¬ 
pensation, which shall neither be increased nor diminished during the 

x This clause has been superseded by the 12th Amendment. 


212 


The Constitution, Copy of 


period for which he shall have been elected, and he shall not receive 
within that period any other emolument from the United States, or 
any of them. 

Before he enter on the execution of his office, he shall take the fol¬ 
lowing oath or affirmation—“I do solemnly swear (or affirm) that I 
will faithfully execute the office of president of the United States, and 
will to the best of my ability, preserve, protect and defend the constitu¬ 
tion of the United States.” 

Section 2. The president shall be commander-in-chief of the army 
and navy of the United States, and of the militia of the several states, 
when called into the actual service of the United States; he may require 
the opinion, in writing, of the principal officer in each of the executive 
departments, upon any subject relating to the duties of their respective 
offices, and he shall have power to grant reprieves and pardons for 
offenses against the United States, except in cases of impeachment. 

He shall have power, by and with the advice and consent of the 
Senate, to make treaties, provided two-thirds of the senators present 
concur; and he shall nominate, and by and with the advice and con¬ 
sent of the Senate, shall appoint ambassadors, other public ministers 
and consuls, judges of the supreme court, and all other officers of the 
United States, whose appointments are not herein otherwise provided 
for, and which shall be established by law; but the Congress may by 
law vest the appointment of such inferior officers, as they think proper, 
in the president alone, in the courts of law, or in the heads of depart¬ 
ments. 

The president shall have power to fill up all vacancies that may 
happen during the recess of the Senate, by granting commissions which 
shall expire at the end of their next session. 

Section 3. He shall from time to time give to the Congress informa¬ 
tion of the state of the Union, and recommend to their consideration 
such measures as he shall judge necessary and expedient; he may, on 
extraordinary occasions, convene both houses, or either of them, and in 
case of disagreement between them, with respect to the time of ad¬ 
journment, he may adjourn them to such time as he shall think proper; 
he shall receive ambassadors and other public ministers; he shall take 
care that the laws be faithfully executed, and shall commission all the 
officers of the United States. 

Section 4. The president, vice-president and all civil officers of the 
United States, shall be removed from office on impeachment for, and 
conviction of, treason, bribery, or other high crimes and misdemeanors. 

ARTICLE III 

Section 1. The judicial power of the United States, shall be vested 
in one supreme court, and in such inferior courts as the Congress may 
from time to time ordain and establish. The judges, both of the su- 
preme and inferior courts, shall hold their offices during good behavior, 
and shall, at stated times, receive for their services, a compensation 
which shall not be diminished during their continuance in office. 


The Constitution, Copy of 


213 


Section 2. Pile judicial power shall extend to all cases, in law and 
equity, arising under this constitution, the laws of the United States, 
and treaties made, or which shall be made, under their authority—to 
all cases affecting ambassadors, other public ministers and consuls,—to 
all cases of admiralty and maritime jurisdiction;—to controversies to 
which the United States shall be a party—to controversies between 
two or more states;—between a state and citizens of another state; — 
between citizens of different states;—between citizens of the same 
state claiming lands under grants of different states, and between a 
state, or the citizens thereof, and foreign states, citizens or subjects. 

In all cases affecting ambassadors, other public ministers and con¬ 
suls, and those in which a state shall be a party, the supreme court 
shall have original jurisdiction. In all the other cases before men¬ 
tioned, the supreme court shall have appellate jurisdiction, both as to 
law and fact, with such exceptions, and under such regulations as the 
Congress shall make. 

The trial of all crimes, except in cases of impeachment, shall be by 
jury; and such trial shall be held in the state where the said crime shall 
have been committed; but when not committed within any state, the 
trial shall be at such place or places as the Congress may by law 
have directed. 

Section 3. Treason against the United States, shall consist only in 
levying war against them, or in adhering to their enemies, giving them 
aid and comfort. No person shall be convicted of treason unless on 
the testimony of two witnesses to the same overt act, or on confession 
in open court. 

The Congress shall have power to declare the punishment of treason, 
but no attainder of treason shall work corruption of blood, or forfeiture 
except during the life of the person attained. 

ARTICLE IV 

Section 1. Full faith and credit shall be given to each state to the 
public acts, records, and judicial proceedings of every other state. And 
the Congress may by general laws prescribe the manner in which such 
acts, records and proceedings shall be proved, and the effect thereof. 

Section 2. The citizens of each state shall be entitled to all privi¬ 
leges and immunities of citizens in the several states. 

A person charged in any state with treason, felony, or other crime, 
who shall flee from justice, and be found in another state, shall on de¬ 
mand of the executive authority of the state from which he fled, be 
delivered up, to be removed to the state having jurisdiction of the 
crime. 

No person held to service or labor in one state, under the laws 
thereof, escaping into another, shall, in consequence of any law or regu¬ 
lation therein, be discharged from such service or labor, but shall be 
delivered up on claim of the party to whom such service or labor may 
be due. 

Section 3. New states may be admitted by the Congress into this 
Union; but no new state shall be formed or erected within the jurisdic- 


214 


The Constitution, Copy of 


tion of any other state; nor any state be formed by the junction of two 
or more states, or parts of states, without the consent of the legis¬ 
latures of the states concerned as well as of the Congress. 

The Congress shall have power to dispose of and make all needful 
rules and regulations respecting the territory or other property belong¬ 
ing to the United States; and nothing in this constitution shall be so 
construed as to prejudice any claims of the United States, or of any 
particular state. 

Section 4. The United States shall guarantee to every state in this 
Union a republican form of government, and shall protect each of them 
against invasion; and on application of the legislature, or of the execu¬ 
tive (when the legislature can not be convened) against domestic 
violence. 


ARTICLE V 

The Congress, whenever two-thirds of both houses shall deem it 
necessary, shall propose amendments to this constitution, or, on the 
application of the legislatures of two-thirds of the several states, shall 
call a convention for proposing amendments, which, in either case, 
shall be valid to all intents and purposes, as part of this constitution, 
when ratified by the legislatures of three-fourths of the several states, 
or by conventions in three-fourths thereof, as the one or the other 
mode of ratification may be proposed by the Congress; provided that 
no amendment which may be made prior to the year one thousand eight 
hundred and eight shall in any manner affect the first and fourth 
clauses in the ninth section of the first article; and that no state, with¬ 
out its consent, shall be deprived of its equal suffrage in the Senate. 

ARTICLE VI 

All debts contracted and engagements entered into, before the adop¬ 
tion of this constitution, shall be as valid against the United States 
under this constitution, as under the confederation. 

This constitution, and the laws of the United States which shall be 
made in pursuance thereof; and all treaties made, or which shall be 
made, under the authority of the United States, shall be the supreme 
law of the land; and the judges in every state shall be bound thereby, 
anything in the constitution or laws of any state to the contrary not¬ 
withstanding. 

The senators and representatives before mentioned, and the mem¬ 
bers of the several legislatures, and all executive and judicial officers, 
both of the United States and of the several states, shall be bound by 
oath or affirmation, to support this constitution; but no religious test 
shall ever be required as a qualification to any office or public trust 
under the United States. 


ARTICLE VII 

The ratification of the conventions of nine states, shall be sufficient 
for the establishment of this constitution between the states so ratify¬ 
ing the same. 


The Constitution, Copy of 


215 


DONE in convention by the unanimous consent of the states present 
the seventeenth day of September in the year of our Lord one thousand 
seven hundred and eighty-seven and of the independence of the United 
States of America the twelfth. IN WITNESS whereof we have here- 


unto subscribed our names, 

GEO. WASHINGTON, 
Presidt. and Deputy from Virginia. 

New Hampshire 

Delaware 

John Langdon 

Geo. Read 

Nicholas Gilman 

John Dickinson 

Massachusetts 

Jaco. Broom 

Gunning Bedford, Jr 

Nathaniel Gorham 

Richard Bassett 

Rufus King 


Connecticut 

Maryland • 

James M’Henry 

Wm. Saml. Johnson 

Roger Sherman 

Danl. Carroll 

Dan. of St. Thos. Jenifer 

New York 

Virginia 

Alexander Hamilton 

John Blair 

New Jersey 

James Madison, Jr. 

Wil. Livingston 

North Carolina 

David Brearley 

Wm. Blount 

Wm. Paterson 

Hu. Williamson 

Jona. Dayton 

Rich'd Dobbs Spaight 

Pennsylvania 

South Carolina 

B. Franklin 

J. Rutledge 

Robt. Morris 

Chas. Cotesworth Pinck¬ 

Tiios. Fitzsimons 

ney 

James Wilson 

Pierce Butler 

Thomas Mifflin 


Geo. Clymer 

Georgia 

Jared Ingersoll 

William Few 

Gouv. Morris 

Abr. Baldwin 


Attest: 


WILLIAM JACKSON, Secretary. 


216 


The Constitution, Copy of Amendments 


Articles in Addition to, and Amendment of, the Constitution of 
the United States of America 


PROPOSED BY CONGRESS, AND RATIFIED BY THE LEGISLATURES OF 
THE SEVERAL STATES PURSUANT TO THE FIFTH ARTICLE OF 
THE ORIGINAL CONSTITUTION. 


ARTICLE I 1 

Congress shall make no law respecting an establishment of religion, 
or prohibiting the free exercise thereof; or abridging the freedom of 
speech, or of the press; or the right of the people peaceably to assemble, 
and to petition the government for a redress of grievances. 

ARTICLE II 

A well-regulated militia, being necessary to the security of a free 
state, the right of the people to keep and bear arms, shall not be in¬ 
fringed. 

ARTICLE III 

No soldier shall, in time of peace, be quartered in any house, without 
the consent of the owner, nor in time of war, but in a manner to be 
prescribed by law. 

ARTICLE IV 

The right of the people to be secure in their persons, houses, papers, 
and effects, against unreasonable searches and seizures, shall not be 
violated, and no warrants shall issue, but upon probable cause, sup¬ 
ported by oath or affirmation, and particularly describing the place to 
be searched, and the persons or things to be seized. 

ARTICLE V 

No person shall be held to answer for a capital, or otherwise in¬ 
famous crime, unless on a presentment or indictment of a grand jury, 
except in cases arising in the land or naval forces, or in the militia, 
when in actual service in time of war or public danger; nor shall any 
person be subject for the same offense to be twice put in jeopardy of 
life or limb; nor shall be compelled in any criminal case to be a wit- 
ness against himself, nor be deprived of life, liberty, or property, with¬ 
out due process of law; nor shall private property be taken for public 
use, without just compensation. 

ARTICLE YI 

In all criminal prosecutions, the accused shall enjoy the right to a 
speedy and public trial, by an impartial jury of the state and district 
wherein the crime shall have been committed, which district shall have 
been previously ascertained by law, and to be informed of the nature 
and cause of the accusation; to be confronted with the witnesses 
against him; to have compulsory process for obtaining witnesses in his 
favor, and to have the assistance of counsel for his defense. 

^he following ten amendments to the several states by the first Congress 
the constitution of the United States on the 25th day of September, 1789. 
were proposed to the legislatures of 


The Constitution, Copy of Amendments 


217 


ARTICLE VII 

In suits at common law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be preserved and no fact 
tried by a jury shall be otherwise re-examined in any court of the 
United States, than according to the rules of the common law. 

ARTICLE' VIII 

Excessive bail shall not be required, nor excessive fines imposed, 
nor cruel and unusual punishments inflicted. 


ARTICLE IX 

The enumeration in the constitution, of certain rights, shall not be 
construed to deny or disparage others retained by the people. 


ARTICLE X 

The powers not delegated to the United States by the constitution, 
nor prohibited by it to the states, are reserved to the states respectively, 
or to the people. 

ARTICLE XU 

The judicial power of the United States shall not be construed to 
extend to any suit in law or equity, commenced or prosecuted against 
one of the United States by citizens of another state, or by citizens or 
subjects of any foreign state. 

ARTICLE XII 2 

Note.— This amendment was called for on account of the election of 1800, 
when Jefferson and Burr were tied for first place. Burr was put forward as a 
candidate for Vice-President only, but, under the Constitution, he came near 
being elected President. 

The electors shall meet in their respective states, and vote by ballot 
for president and vice-president, one of whom, at least, shall not be an 
inhabitant of the same state with themselves; they shall name in their 
ballots the person voted for as president, and in district ballots the 
person voted for as vice-president, and they shall make district lists of 
all persons voted for as president, and of all persons voted for as vice- 
president, and of the number of votes for each, which lists they shall 
sign and certify, and transmit sealed to the seat of the government of 
the United States, directed to the president of the Senate;—The presi¬ 
dent of the Senate shall, in presence of the Senate and House of Repre¬ 
sentatives, open all the certificates and the votes shall then be counted; — 
The person having the greatest number of votes for president, shall be 
the president, if such number be a majority of the whole number of elec¬ 
tors appointed; and if no person have such majority, then from the 
persons having the highest numbers not exceeding three on the list of 
those voted for as president, the House of Representatives shall choose 
immediately, by ballot, the president. But in choosing the president, 
the votes shall be taken by states, the representation from each state 


iThe 11th Amendment of the consti¬ 
tution of the United States was pro¬ 
posed to the legislatures of the several 
states by the third Congress on Sep¬ 
tember 5, 1794 ; and declared in a mes¬ 
sage from the President to Congress 


January 8, 1798, to have been ratified 
by the legislatures of three-fourths of 
the states. 

2 Twelfth Amendment proposed De¬ 
cember 12, 1803, and declared to have 
been ratified September 25, 1804. 


218 


The Constitution, Copy of Amendments 


having one vote; a quorum for this purpose shall consist of a member 
or members from two-thirds of the states, and a majority of all the 
states shall be necessary to a choice. And if the House of Representa¬ 
tives shall not choose a president whenever the right of choice shall 
devolve upon them, before the fourth day of March next following, then 
the vice-president shall act as president, as in the case of the death 
or other constitutional disability of the president. The person having 
the greatest number of votes as vice-president, shall be the vice-presi¬ 
dent, if such number be a majority of the whole number of electors ap¬ 
pointed, and if no person have a majority, then from the two highest 
numbers on the list, the Senate shall choose the vice-president; a 
quorum for the purpose shall consist of two-thirds of the whole number 
of senators, and a majority of the whole number shall be necessary to 
a choice. But no person constitutionally ineligible to the office of presi¬ 
dent shall be eligible to that of vice-president of the United States. 

ARTICLE XIII 1 

Note. —All amendments prior to the 12th was to decentralize power, to 
weaken the power of the Union and strengthen that of the States and the people. 
All subsequent ones, except the 17th, have been to centralize power in the United 
States and to weaken that of the States and the people thereof. It is high time 
for the pendulum to begin to swing back, if the dual form of government is to he 
longer preserved. 

Section 1. Neither slavery nor involuntary servitude, except as a 
punishment for crime whereof the party shall have been duly convicted, 
shall exist within the United States, or any place subject to their juris- 
diction. 

Section 2. Congress shall have power to enforce this article by 
appropriate legislation. 

ARTICLE XIV 2 

Section 1. All persons born or naturalized in the United States, and 
subject to the jurisdiction thereof, are citizens of the United States and 
of the state wherein they reside. No state shall make or enforce any 
law which shall abridge the privileges or immunities of citizens of the 
United States; nor shall any state deprive any person of life, liberty, 
or property, without due process of law; nor deny to any person within 
its jurisdiction the equal protection of the laws. 

Section 2. Representatives shall be apportioned among the several 
states according to their respective numbers, counting the whole num¬ 
ber of persons in each state, excluding Indians not taxed. But when 
the right to vote at any election for the choice of electors for president 
and vice-president of the United States, representatives in Congress, the 
executive and judicial officers of a state, or the members of the legis¬ 
lature thereof, is denied to any of the male inhabitants of such state, 
being twenty-one years of age, and citizens of the United States, or in 
any way abridged, except for participation in rebellion, or other crime, 
the basis of representation therein shall be reduced in the proportion 
which the number of such male citizens shall bear to the whole number 
/of male citizens twenty-one years of age in such state. 

1 The 13th Amendment proposed Feb- 2 The 14th Amendment proposed 
ruary 1. 1865. and declared to have June 16, 1866. and declared to have 
been ratified December 18, 1865. been ratified July 21, 1869. 


The Constitution, Copy of Amendments 


219 


Section 3. No person shall be a senator or representative in Con¬ 
gress, or elector of president and vice-president, or hold any office, civil 
or military, under the United States, or under any state, who, having 
previously taken an oath, as a member of Congress, or as an officer of 
the United States, or as a member of any state legislature, or as an 
executive or judicial officer of any stae, to support the constitution of 
the United States, shall have engaged in insurrection or rebellion 
against the same, or given aid or comfort to the enemies thereof. But 
Congress may, by a vote of two-thirds of each house, remove such 
disability. 

Section 4. The validity of the public debt of the United States, 
authorized by law, including debts incurred for payment of pensions and 
bounties for services in suppressing insurrection or rebellion, shall not 
be questioned. But neither the United States nor any state shall 
assume or pay any debt or obligation incurred in aid of insurrection or 
rebellion against the United States, or any claim for the loss or emanci¬ 
pation of any slave; but all such debts, obligations and claims shall be 
held illegal and void. 


ARTICLE XV 1 

Section 1. The right of citizens of the United States to vote shall 
not be denied or abridged by the United States or by any state on 
account of race, color, or previous condition of servitude. 

Section 2. The Congress shall have power to enforce this article by 
appropriate legislation. 


ARTICLE XVI 2 

The Congress shall have power to lay and collect taxes on incomes, 
from whatever source derived, without apportionment among the 
several states, and without regard to any census or enumeration. 


ARTICLE XVIP 


The Senate of the United States shall be composed of two senators 
from each state, elected by the people thereof, for six years; and each 
senator shall have one vote. The electors in each state shall have the 
qualifications requisite for electors of the most numerous branch of the 
state legislature. 

When vacancies happen in the representation of any state in the 
Senate, the executive authority of such state shall issue writs of elec¬ 
tion to fill such vacancies: provided, that the legislature of any state 
may empower the executive thereof to make temporary appointment 
until the people fill the vacancies by election as the legislature may 
direct. 

This amendment shall not be construed as to affect the election or 
term of any senator chosen before it becomes valid as part of the con¬ 
stitution. 


iThe 15th Amendment proposed Feb¬ 
ruary 27, 1869, and declared to have 
been ratified March 30, 1870. 

2 The 16th Amendment proposed July 
81, 1909, and declared ratified Feb¬ 
ruary 25, 1913. 


3 The 17th Amendment proposed May 
15, 1912, and declared ratified May 
31, 1913. This amendment proposed 
in lieu of the original first paragraph 
of section 3 of article I, and in lieu 
of so much of paragraph 2 of the same 
section as related to the filling of 
vacancies. 


220 


The Constitution Defined 


ARTICLE XVIII 

Section 1. After one year from the ratification of this article the 
manufacture, sale, or transportation of intoxicating liquors within, the 
importation thereof into, or the exportation thereof from the United 
States and all territory subject to the jurisdiction thereof for beverage 
purposes is hereby prohibited. 

Section 2. The Congress and the several states shall have concur¬ 
rent power to enforce this article by appropriate legislation. 

Section 3. This article shall be inoperative unless it shall have 
been ratified as an amendment to the constitution by the legislatures 
of the several states, as provided in the constitution, within seven 
years from the date of the submission hereof to the state by the 
Congress. 

Note: —The 19th amendment will probably be adopted before this 
book is out of the press. 

The Constitution Defined 

The Supreme Court.has thus defined the Constitution: 

What is a constitution? It is the form of government, delineated 
by the mighty hand of the people, in which certain first principles of 
fundamental laws are established. The Constitution is fixed and cer¬ 
tain; it contains the permanent will of the people, and it is the supreme 
law of the land; it is paramount to the will of the people, and it is the 
supreme law of the land; it is paramount to the will of the legislature, 
and can be revoked and altered only by the authority that made it. The 
life-giving principle and the death-dealing stroke must proceed from 
the same hand * * * In short, the Constitution is the sum of the 

political system, around which the legislative, executive, and judicial 
bodies revolve. Whatever may be the case in other countries, yet in 
this there can be no doubt that every act of the legislature repugnant 
to the Constitution is absolutely void. Yanhorne's Lessee v. Dorrance, 
2 Dali. 308; Miller's Const. Note p. 71. 

The constitution of a state is the fundamental law of the state, con¬ 
taining the principles upon which the government is founded, and regu¬ 
lating the division of the sovereign powers, directing to what persons 
each of those powers is to be confided and the manner in which it is to 
be exercised. Black on Constitutional Law, 1-2. 

In Amerioan law, the constitution is the organic and fundamental 
act adopted by the people of the Union or of a particular state as the 
supreme and paramount law and the basis and regulating principle of 
the government. Black on Constitutional Law, 2. 

“Constitutional” means conforming to the constitution. A statute 
or ordinance which is inconsistent with the constitution, or in conflict 
with any of its provisions, is said to be “unconstitutional.” Black on 
Constitutional Law, h. 

Judge Cooley thus defines American Constitutions: 

A constitution is sometimes defined as the fundamental law of a 
State, containing the principles upon which the government is founded, 
regulating the division of the sovereign powers, and directing to what 


The Constitution Defined 


221 


persons each of these powers is to be confided, and the manner in which 
it is to be exercised. Perhaps an equally complete and accurate definh 
tion would be, that body of rules and maxims in accordance with which 
the powers of sovereignty are habitually exercised. Cooley on Con¬ 
stitutional Limitations, k. 

In American constitutional law, the word constitution is used in a 
restricted sense, as implying the written instrument agreed upon by 
the people of the Union, or of any one of the States, as the absolute 
rule of action and decision for all departments and officers of the gov¬ 
ernment, in respect to all the points covered by it, which must control 
until it shall be changed by the authority which established it, and in 
opposition to which any act or regulation of any such department or 
officer, or even of the people themselves, will be altogether void. Cooley 
on Constitutional Limitations, 5. 

In Great Britain constitutional questions are for the most part to 
be discussed before the people or the Parliament, since the declared 
will of the Parliament is the final law; but in America, after a consti¬ 
tutional question has been passed upon by the legislature, there is 
generally a right of appeal to the courts when it is attempted to put 
the will of the legislature in force. For the will of the people, as de¬ 
clared in the Constitution, is the final law; and the will of the legisla¬ 
ture is law only when it is in harmony with, or at least is not opposed 
to, that controlling instrument which governs the legislative body 
equally with the private citizen. Cooley on Constitutional Limita¬ 
tions, 6. 

“Constitutional Law” Defined 

Constitutional law is that department of the science of law which 
treats of the nature of constitutions, their establishment, construction, 
and interpretation, and of the validity of legal enactments as tested 
hy the criterion of conformity to the fundamental law. Black, on Con¬ 
stitutional Law, 1. 

The Constitution as a Grant of Powers 

The federal constitution contains a grant of powers to the govern¬ 
ment which it creates, but is not exhaustive of the powers which the 
people who maintain it might confer upon that government. Black on 
Constitutional Law, 31. 

The Constitution as the Supreme Law 

The constitution of the United States is the supreme law of the land, 
and is equally binding upon the federal government and the states and 
all their officers and people. Any and all enactments which may be 
found to be in conflict with the constitution are null and void. Black 
on Constitutional Law, 32. 

The Constitution and Treaty Laws 

It is elementary that a State statute, in conflict with a law of Con¬ 
gress upon a subject about which Congress may constitutionally legis¬ 
late, is void. So, too, a State statute is void if it relates to a subject 
which is vested exclusively in Congress by the Constitution. A treaty, 


222 


The Constitution, Origin of 


although its obligations in regard to the other party to it remain in 
force, is, as a part of the supreme law of the land, subject to be re¬ 
voked or modified as to its municipal operation, by act of Congress, 
like any other law. Miller's Const. pp. 643-4. 

Differences Between Constitution and Statutes 

A constitution differs from a statute or act of a legislature in three 
important particulars: 

(1) It is enacted by the whole people who are to be governed by it, 
instead of being enacted by their representatives sitting in a congress 
or legislature. 

(2) A constitution can be abrogated, or modified only by the power 
which created it, namely, the people; whereas a statute may be re¬ 
pealed or changed by the legislature. 1 

(3) The provisions of a constitution refer to the fundamental prin¬ 
ciples of government, or the establishment and guaranty of liberties, 
instead of being designed merely to regulate the conduct of individuals 
among themselves. But the tendency towards amplification, in modern 
constitutions, derogates from the provision of this last distinction. 
Black, on Constitutional Laws, 4 • 

Origin of the Constitution 

Mr. Madison thus states the origin of the Convention that 
created it in answer to a personal inquiry: 

I am not sure that I understand your allusions to the origin of 
the Convention of 1787. If I do, you have overlooked steps antecedent 
to the interposition of the old Congress. That Convention grew out 
of the Convention at Annapolis, in August, 1786, recommended by Vir¬ 
ginia in the preceding winter. It had for its objects certain provisions 
only, relating to commerce and revenue. The Deputies who met, in¬ 
ferring from an interchange of information as to the state of the public 
mind that it had made a great advance, subsequent even to the act of 
Virginia, towards maturity for a thorough reform of the federal sys¬ 
tem, took the decisive step of recommending a Convention, with 
adequate powers for the purpose. The Legislature of Virginia, being 
the first that assembled, set the example of compliance, and endeavored 
to strengthen it by putting General Washington at the head of the 
Deputation. 

I can not but highly approve the industry with which you have 
searched for a key to the sense of the Constitution, where alone the 
true one can be found, in the proceedings of the Convention, the con¬ 
temporary expositions, and, above all, in the ratifying conventions of 
the States. If the instrument be interpreted by criticisms which lose 
sight of the intention of the parties to it, in the fascinating pursuit of 
objects of public advantage or convenience, the purest motives can be 
no security against innovations materially changing the features of the 
government. 3 Writings of Madison, pp. 521-522. 

4 In this sense England can not be nency of any of her constitutional pro- 
truly said to have a constitution. The visions, no matter how venerable or 
will of Parliament is the only perma- sacred. 


The Constitution, Origin of 223 

Mr. Bryce thus describes the origin of the American Constitu¬ 
tion : 

In the reign of George III troubles arose between England and her 
North American colonists, there existed along the eastern coast of the 
Atlantic thirteen little communities, the largest of which (Virginia) 
had not much more than half a million people, and the total population 
of which did not reach three millions. All owed allegiance to the 
British Crown, all, except Connecticut and Rhode Island, received their 
governors from the Crown; in all, causes were carried by appeal from 
the colonial courts to the English Privy Council. Acts of the British 
Parliament ran there as they now run in the British colonies, when¬ 
ever expressed to have the effect, and could over-rule such laws as the 
colonies might make. Bryce's American Commonwealth, Vol. I, 16. 

When the oppressive measures of the home government roused the 
colonies, they naturally sought to organize their resistance in com. 
mon. Singly they would have been an easy prey, for it was long 
doubtful whether even in combination they could make he£d against 
regular armies. A congress of delegates from nine colonies held in 
New York in 1765 was followed by another at Philadelphia in 1774, at 
which twelve were represented, which called itself Continental (for 
the name American had not yet become established), and spoke in the 
name of the “good people of these colonies,” the first assertion of a 
sort of national unity among the English of America. This congress, 
in which from 1775 onwards all the colonies were represented, was a 
merely revolutionary body, called into existence by the war with the 
mother country. But in 1776 it gave itself a new legal character by 
framing the “Articles of Confederation and Perpetual Union,” whereby 
the thirteen States (as they now called themselves) entered into a 
“firm league of friendship” with each other, offensive and defensive, 
while declaring that “each State retains its sovereignty, freedom, and 
independence, and every power, jurisdiction, and right which is not by 
this Confederation, expressly delegated to the United States in Congress 
assembled.” Bryce's American Commonwealth, Vol. I, 16-17. 

The Convention thus summoned met at Philadelphia on the 14th of 
May, 1787, became competent to proceed to business on May 25th, when 
seven States were represented, and chose George Washington to preside. 
Delegates attended from every State but Rhode Island, and these dele¬ 
gates, unlike those usually sent to Congress, were the leading men of 
the country, influential in their several States, and now filled with a 
sense of the need for comprehensive reforms. The instruction they 
had received limited their authority to the revision of the articles of 
Confederation and the proposing to Congress and the State legislatures 
such improvements as were required therein. But with admirable 
boldness, boldness doubly admirable in Englishmen and lawyers, and 
to prepare a wholly new Constitution, to be considered and ratified 
neither by Congress nor by the State legislatures, but by the peoples 
of the several States. Bryce's American Commonwealth, Vol. I, 19. 

The debates were secret, and fortunately so, for criticism from 
without might have imperilled a work which seemed repeatedly on the 
point of breaking down, so great were the difficulties encountered from 


224 The Constitution Outgrowth of Old Institutions 

% 

the divergent sentiments and interests of different parts of the coun¬ 
try, as well as of the larger and smaller States. The records of the 
Convention were left in the hands of Washington, who in 1796 deposited 
them in the State Department. In 1819 they were published along with 
the notes of the discussions kept by James Madison (afterwards twice 
President), who had proved himself one of the ablest and most useful 
members of the body. From these official records and notes the his¬ 
tory of the Convention has been written, and may be found in the in- 
structive volumes of Mr. G. T. Curtis and of Mr. George Bancroft, now 
the patriarch of American history. Bryce's American Commonwealth, 
Vol . 1,20. 

There was a struggle over the adoption of the Constitution, a 
struggle which gave birth to the two great parties that for many years 
divided the American people. The chief source of hostility was the 
belief that a strong central government endangered both the rights of 
the States and the liberties of the individual citizen. Freedom, it was 
declared, would perish, freedom rescued from George III would perish 
at the hands of her own children. Consolidation (for the word cen¬ 
tralization had not yet been invented) would extinguish the State gov¬ 
ernments and the local institutions they protected. The feeling was 
very bitter, and in some States, notably in Massachusetts and New 
York, the majorities were dangerously narrow. Bryce's American Com¬ 
monwealth, Vol. I, 23. 

The Constitution An Outgrowth of Old Institutions and Not of 

New Devices 

“Nature is wiser than the wisest of men.” The best men 
can hope to do is to study her laws and attempt to follow her 
examples. No set or generation of men can hope to learn all 
of her laws, or to follow all of her examples. One set or gen¬ 
eration learns a few of her laws and how to apply them, and 
another a few more, and thus progress and Civilization goes on. 
Our forefathers, in making our Constitution, did not attempt 
something wholly new. They were very, very wise men, as 
wise as any then living. They not only formulated the laws 
of Nature which they had learned and applied in constituting 
a government, but they applied those that their predecessors 
had learned and applied successfully. They avoided the errors 
of their predecessors in attempting to create and to operate a 
government, which had to move contrary to the laws of Nature. 
They erred, in some cases of course, by following their ances¬ 
tors, the greatest of which was in their attempt to legalize 
slavery. This mistake came near destroying the government. 
No government or other body can long continue to move con¬ 
trary to the laws of Nature. Tier laws are supreme and in 
the end all others must conform thereto. 


The Constitution, Genesis of 


225 


Another mistake was in the mode of selecting a president. 
Several attempts have been made to better this provision, but 
it is not yet perfected. In practice, however, the theory is not 
attempted to be carried out. The selection is really made by 
political conventions. The most that the election does is to de¬ 
termine which of those nominated by the conventions shall be 
selected. Mr. Wilson cites this as an instance of amending the 
Constitution by custom or usage. It is either amended or 
ignored. The best and most enduring parts of our Constitu¬ 
tion are those of old institutions, which have been proven to 
work well in other governments, and not those designedly in¬ 
tended as new and to attain a desired and specified end. A 
government formed, as ours was, by a combination of principles 
which had been tested and proven by time, is much more suc¬ 
cessful than one made up wholly of new theories and experi¬ 
ments. Emperors have supposed our Constitution to be of the 
latter kind, when in truth it is of the former. Mr. Bryce has 
well pointed out this error. 

The very best and most enduring parts of our Federal Con¬ 
stitution were taken from European Constitutions and from 
the State Constitutions, which had been tested by our forefath¬ 
ers. Mr. Bryce has made the following remarks on the subject: 

Some one has said that the American Government and Constitu¬ 
tion are based on the theology of Calvin and the philosophy of 
Hobbes. This is at least true, that there is a hearty Puritanism in the 
view of human nature which pervades the instrument of 1787. It is 
the work of men who believed in original sin, and were resolved to 
leave open for trespassers no door which they could possibly shut. 
Compare this spirit with the enthusiastic optimism of the Frenchmen 
of 1789. It is not merely a difference of race temperaments; it is a 
difference of fundamental ideas. 

With the spirit of Puritanism there is blent a double portion of 
the spirit of legalism. Not only is there no reliance on ethical forces 
to help the government to work: there is an elaborate machinery of 
law to preserve the equilibrium of each of its organs. The aim of 
the Constitution seems to be not so much to attain great common ends 
by securing a good government as to avert the evils which will flow, 
not merely from a bad government, but from any government strong 
enough to threaten the pre-existing communities or the individual 
citizen. 

The spirit of 1787 was an English spirit, and therefore a conserva¬ 
tive spirit, tinged, no doubt, by the hatred to tyranny developed in the 
revolutionary struggle, tinged also by the nascent dislike to inequality, 
but in the main an English spirit, which desired to walk in the old 
paths of precedent, which thought of government as a means of main- 


226 


The Constitution, Objects and Purposes of 


taining order and securing to every one his rights, rather than as a 
great ideal power, capable of guiding and developing a nation’s life. 
And thus, though the Constitution of 1789 represented a great advance 
on the still oligarchic system of contemporary England, it was yet, 
if we regard simply its legal provisions, the least democracy of 
democracies. Bryce's American Commonwealth, Vol. I, 299-300. 

Prototypes of the Constitution 

The Constitution of the United States is not the first written con¬ 
stitution of a nation, although it is the first that has had a prolonged 
and successful duration. Articles of confederation in peace and war 
between different states were the natural outgrowth of treaties of 
alliances between small powers under constant dangers from an enemy 
too strong for any one of them alone. Such was the Achaian League, 
which lasted in Greece one hundred and thirty-four years, from the 
reign of Pyrrhus to the proconsulate of Mummius. At the outbreak 
of the Revolution, such confederations dragged out an impotent exist¬ 
ence in Switzerland and the Netherlands. From the latter form of 
league were copied many of the defects in the instrument which the 
Constitution displaced. Foster on the Constitution, Vol. 1, p. 27. 


Objects and Purposes of the Constitution 

The establishment of our Constitution was in fact, as Dr. Hill 
points out, “the first attempt in history to lay the foundations of gov¬ 
ernment in the deep setting of human rights.” It gave to government 
a human foundation instead of a merely dynamic foundation. For the 
unique contribution of the American Constitution to political philoso¬ 
phy was the conception of liberty as a strictly personal prerogative, as 
distinguished from something appertaining to the citizenry in the 
aggregate, or the concession of a monarch to the demands of its sub¬ 
jects. From this premise it must follow that the prime concern of 
our system of government is not the state, but the citizen. 1 The col¬ 
lective purpose of the people is to be accomplished through the state 
as their instrument. The Constitutional Review, Vol. 1, 51. 

Let us never forget that our constitutions of government are solemn 
instruments, addressed to the common sense of the people, and de¬ 
signed to fix and perpetuate their rights and their liberties. They are 
not to be frittered away to please the demagogues of the day. They 
are not to be violated to gratify the ambition of political leaders. 
They are to speak in the same voice now and forever. They are of 
no man’s private interpretation. They are ordained by the will of 
the people; and can be changed only by the sovereign demand of the 
people. Story on the Constitution, Vol. V, p. 653-4, § 1908. 


1 Herein our Constitutions differ from 
all others. It is a Constitution both 
of government and of liberty; where¬ 
as. others are of government only. 
With us liberty is the direct object 
to be attained and preserved, while 
the government is incidental as an 
agency to the end. With others, the 
government is the direct object and 
end to be attained and perpetuated ; 


whereas, liberty is incidental and must 
be accorded by the government, gra¬ 
tuitously if obtained. With us, human 
rights and liberties are everything, 
dynamic power little; with others, 
dynamic governmental power is every¬ 
thing and the rights and liberties of 
the people subjects of little impor¬ 
tance. 


The Constitution, Objects and Purposes of 227 


Mr. Calhoun thus defined the objects and purposes of Consti¬ 
tutions : 

Constitutions stand to governments, as laws do to individuals. As 
the object of laws is to regulate and restrain the actions of individ¬ 
uals, so as to prevent one from oppressing or doing violence to another, 
so in like manner, tkat of constitutions is to regulate and restrain the 
actions of governments, so that those who exercise its powers, shall not 
oppress or do violence to the rest of the community. Without laws, 
there would be universal anarchy and violence in the community; and, 
without constitutions, unlimited despotism and oppression. This is 
true, be the form of government what it may. If the government of 
one man or that of a few, would abuse its authority, if not restrained, 
—as is admitted,—there is no reason why that of the many would not 
do the same, if not also restrained. If, in a community of one hun¬ 
dred persons, forty-nine can not be trusted with unlimited power over 
fifty-one—on what principle can fifty-one be trusted with unlimited 
power over forty-nine? If, unrestrained, the one will abuse its powers, 
why will not the other also? Can the transfer of a single individual, 
from the side of the fifty-one to that of the forty-nine, have the magic 
effect of reversing the character of the two, and making that unsafe, 
which before was trust-worthy? 

The truth is,—the Government of the uncontrolled numerical ma¬ 
jority is but the absolute and despotic form of popular governments .* 

Calhoun's Works, pp. 228-9. 

Mr. Webster thus states the object of the Constitution: 

It was, for certain purposes, to make us one people, though surely 
not for all purposes; and the extent to which it was desired and de¬ 
signed that the people of all the States should be one people, and the 
government over these people should be one government, is expressed 
in a document of the most authentic character, I mean the letter ad¬ 
dressed to the Congress of the Confederation by the Convention which 
formed the Constitution. That letter, written on behalf of the Con¬ 
vention, and having the great name of Washington subscribed to it, 
says: 

“The friends of our country have long seen and desired that the 
power of making war, peace, and treaties, that of levying money and 
regulating commerce, and the correspondent executive and judicial 
authorities, should be fully and effectually vested in the general gov¬ 
ernment of the Union.” 

We see here, then, that the object of this Constitution was to make 
the people of the United States one people, and to place them under 
one government, in regard to everything respecting their relation to 
foreign states and the aspect in which the nations of the world were 
to regard them. It was not an amalgamation of the whole people 


Nothing better has been said on the 
subject by any statesman or philoso¬ 
pher, as to fundamental distinction be¬ 
tween Constitutions and statutes. In 
fact, it is all that need be said ; it is 
truly multum in parvo. It is to be re¬ 
gretted that the distinction is not al¬ 


ways ohserved. The modern trend of 
thought is to change the Constitution 
into statutes. If statutes are destroy¬ 
ed, anarchy is the result; if Constitu¬ 
tions are made statutes, despotism re¬ 
sults. 


228 


The Constitution , Evolution of 


under one government; not an extinguishment of the State sovereign¬ 
ties. 1 That would have been an extinction, not a union, of existing 
States. 2 Webster's Works, (7th ed.), p. 223.224. 


Development and Evolution of the Constitution 

There have developed, during the last century, changes in 
the Constitution due to custom and usage, which would not be 
perceived by a mere reading of the instrument, or of text¬ 
books, or decisions construing it. These changes might be 
called amendments by custom and usage, which have gone un¬ 
challenged. One of these has been the mode of selecting the 
president and vice-president. Mr. Bryce thus numbers the 
others: 

To expect any form of words, however weightily conceived, with 
whatever sanctions enacted, permanently to restrain the passions and 
interests of men is to expect the impossible. Beyond a certain point, 
you can not protect the people against themselves any more than you 
do, to use a familiar American expression, lift yourself from the 
ground by your own boot-straps. Laws sanctioned by the over¬ 
whelming physical power of despots, laws have failed to restrain those 
passions in ages of slavery and superstition. The world is not so 
much advanced that in this age laws, even the best and most vener¬ 
able laws, will of themselves command obedience. Constitutions which 
in quiet times change gradually, peacefully, almost imperceptibly, must 
in times of revolution, be changed more boldly, some provisions being 
sacrificed for the sake of the rest, as mariners throw overboard part 
of the cargo in the storm in order to save the other part with the ship 
herself. To cling to the letter of the Constitution when the welfare 
of the country for whose sake the Constitution exists is at stake, would 
be to seek to preserve life at the cost of all that makes life worth 
living —propter vitam vivendi perdere causas. 

Nevertheless the rigid Constitution of the United States has ren¬ 
dered, and renders now, inestimable services. It opposes obstacles to 
rash and hasty change. It secures time for deliberation. It forces 
the people to think seriously before they alter it or pardon a trans¬ 
gression of it. It makes legislatures and statesmen slow to overpass 
their legal powers, slow even to propose measures which the Con¬ 
stitution seems to disapprove. It tends to render the inevitable pro¬ 
cess of modification gradual and tentative, the result of admitted and 
growing necessities rather than of restless impatience. It altogether 
prevents some changes which a temporary majority may clamour for, 
but which will have ceased to be demanded before the barriers inter¬ 
posed by the Constitution have been overcome. 

It does still more than this. It forms the mind and temper of the 
people. It trains them to habits of legality. It strengthens their con- 


VL'he modern tendency of action if 
not of thought is to extinguish the 
States, as to any sovereign power and 
to make them agencies and parts only 
of the central government, as coun¬ 
ties and cities are parts of the State. 


If this continues, we will soon have no 
union of States, but parts and parcels 
of one central government or nation 
as to all things, domestic as well as 
foreign, local as well as general. 


The Constitution, Opinion of Those Who Made It 229 


servative instincts, their sense of the value of stability and perma¬ 
nence in political arrangements. It makes them feel that to compre¬ 
hend their supreme instrument of government is a personal duty, in¬ 
cumbent on each one of them. It familiarizes them with, it attaches 
them by ties of pride and reverence to, those fundamental truths on 
which the Constitution is based. 

These are enormous services to render to any free country, but 
above all to one which, more than any other, is governed not by the 
men of rank or wealth or special wisdom, but by public opinion, that 
is to say, by the ideas and feelings of the people at large. Bryce's 
American Commonwealth, Vol. I, 396-7. 

The Opinion of Eminent Men as to the Constitution and Those 

Who Proposed It. 

Bancroft thus speaks of the subject and gives references: 

On the proposition for another convention all the states answered, 
“No.” Washington then put the question of agreeing to the constitu¬ 
tion in its present form; and all the states present answered “Aye.” 
The constitution was then ordered to be engrossed, and late on the 
evening of Saturday the house adjourned. Gilpin, 1595; Eliot, 553. 

One morning Washington, in a desultory conversation with mem¬ 
bers of the convention before the chair was taken, observed how un¬ 
happy it would be, should any of them oppose the system when they 
returned to their states. (Luther Martin in Maryland Journal of 21 
March, 1788.) On Monday, the seventeenth of September, Franklin 
made a last effort to win over the dissenting members. “Mr. Presi¬ 
dent,” said he, “several parts of this constitution I do not at present 
approve, but I am not sure I shall never approve them. It astonishes 
me to find this system approaching so near to perfection. I consent 
to this constitution because I expect no better, and because I am not 
sure that it is not the best. The opinions I have had of its errors I 
sacrifice to the public good. 

“On the whole, sir, I can not help expressing a wish that every mem¬ 
ber of the convention, who may have objections to it, would with me 
on this occasion doubt a little of his own infallibility, and to manifest 
our unanimity, put his name to this instrument.” Gilpin, 1597, 1598; 
Elliot, 554, 555. He then moved that the constitution be signed by the 
members; and he offered as the form of signature a simple testimony 
that the constitution had received “the unanimous consent of the 
states present.” Gilpin, 1598; Elliot. 555. But this ample concession 
induced neither Mason, nor Gerry, nor Randolph to relent. Bancroft 
on the History 'of the Constitution of the United States , 365. 

“I saw the imperfections of the constitution I aided in the birth of, 
before it was handed to the public; but I am fully persuaded it is the 
best that can be obtained at this time, that it is free from many of the 
imperfections with which it is charged, and that it or disunion is be¬ 
fore us to choose from. If the first is our election, when the defects 
or it are experienced, a constitutional door is opened for amendments 
and may be adopted in a peaceable manner, without tumult or dis¬ 
order.” Washington to Charles Carter, 14 December 1787, in Penn. 


230 The Constitution, Opinion of Those Who Made It 


Packet of 11 January 1788. The original draft of the letter is pre¬ 
served in the State Department. Bancroft on the History of the Con¬ 
stitution of the United States, 380. 

The letter of Washington said: The powers necessary to be vested 
in “the general government of the union” are too extensive to be dele¬ 
gated to “one body of men.” “It is impracticable, in the federal gov- 
ernment of these states, to secure all rights of independent sovereignty 
to each, and yet provide for the interest and safety of all; it is difficult 
to draw with precision the line between those rights which must be 
surrendered and those which may be reserved; on the present occasion 
this difficulty was increased by a difference among the several states 
as to their situation, extent, habits, and particular interests. We kept 
steadily in view the consolidation of our union, in which is involved 
our prosperity, felicity, safety, perhaps our national existence. And 
thus the constitution which we now present is the result of that mutual 
deference and concession which the peculiarity of our political situa¬ 
tion rendered indispensable.” 

The constitution met with opposition indefatigable from Richard 
Henry Lee, (Carrington to Madison, Sunday, 23 September 1787) sup¬ 
ported by Nathan Dane, (Gilpin, 643, 650; Elliot, 566, 568.) Bancroft 
on the History of the Constitution of the United States » 371. 

Monroe wrote to Madison that his “strong objections” to the con¬ 
stitution “were overbalanced by the arguments in its favor.” Monroe 
to Madison, 13 October 1787. Bancroft on the History of the Constitu¬ 
tion of the United States, 377. 

Mr. Wilson, of Pennsylvania, said of it: 

“The United States exhibit to the world the first instance of a nation 
unattacked by external force, unconvulsed by domestic insurrections, 
assembling voluntarily, deliberating fully, and deciding calmly con¬ 
cerning the system of government under which they and their posterity 
should live. To form a good system of government for a single city or 
an inconsiderable state has been thought to require the strongest efforts 
of human genius; the views of the convention were expanded to a large 
portion of the globe. 

“The difficulty of the business was equal to its magnitude. The 
United States contain already thirteen governments mutually inde¬ 
pendent; their soil, climates, productions, dimensions, and numbers are 
different; in many instances a difference and even an opposition sub¬ 
sists amon^ their interests, and is imagined to subsist in many 
more. Mutual concessions and sacrifices, the consequences of mutual 
forbearance and conciliation, were indispensably necessary to the suc¬ 
cess of the great work.” Bancroft on the History of the Constitution of 
the United States, 384. 

“The powers of the federal government and those of the state gov¬ 
ernments are drawn from sources equally pure. The principle of rep¬ 
resentation, unknown to the ancients, is confined to a narrow corner of 
the British constitution. For the American states were reserved the 
glory and happiness of diffusing this vital principle throughout the 
continent parts of government. 


The Constitution, Opinions of Other Statesmen As to 231 

“The convention found themselves embarrassed with another diffi¬ 
culty of peculiar delicacy and importance; I mean that of drawing a 
proper line between the national government and the governments of 
the several states. Whatever object of government is confined in its 
operation and effects within the bounds of a particular state should be 
considered as belonging to the government of that state; whatever 
object of government extends in its operation or efforts beyond the 
bounds of a particular state should be considered as belonging to the 
government of the United States. To remove discretionary construc¬ 
tion, the enumeration of particular instances in which the application 
of the principle ought to take place will be found to be safe, unex¬ 
ceptionable, and accurate.” Bancroft on the History of the Constitution 
of the United States, 385-6. 

On the next day Wilson summed up his defense of the constitution 
and repeated: “This system is not a compact; I can not discern the 
least trace of a compact; the introduction to the work is not an un¬ 
meaning flourish; the system itself tells you what it is, an ordinance, 
an establishment of the people.” Eliot, ii, 497, 499. Bancroft on the 
History of the Constitution of the United States, 390. 

Bancroft, the historian, thus describes the debates, and cor¬ 
respondence as to the ratification of the Constitution: 

Parsons recapitulated and answered the objections brought against 
the constitution, and closed his remarks by saying: “An increase of 
the powers of the federal constitution by usurpation will be upon thir¬ 
teen completely organized legislatures having means as well as inclina¬ 
tion to oppose it successfully. The people themselves have the power 
to resist it without an appeal to arms. An act of usurpation is not a 
law, and therefore is not obligatory; and any man may be justified in 
his resistance. Let him be considered as a criminal by the general 
government; his own fellow-citizens are his jury; and if they pro¬ 
nounce him innocent, not all the powers of congress can hurt him.” 
Elliot, ii, 94. Bancroft on the History of the Constitution of the United 
States, 401-2. 

Jefferson, while in Congress as the successor of Madison, had led 
the way zealously toward rendering the American constitution more 
perfect. “The federal convention,” so he wrote to one correspondent 
on hearing who were its members, “is really an assembly of demigods;” 
and to another: “It consists of the ablest men in America.” He hoped 
from it a broader reformation, and saw with satisfaction “a general dis¬ 
position through the states to adopt what it should propose.” To 
Washington he soberly expressed the opinions from which during his 
long life he never departed: “To make our states one as to all foreign 
concerns, preserve them several as to all merely domestic, to give to 
the federal head some peaceable mode of enforcing its just authority, 
to organize that head into legislative, executive, and judiciary depart¬ 
ments, are great desiderare.” Jefferson, i, 349, 260, 149, 264, 250, 251. 

Early in November Jefferson received a copy of the new constitu¬ 
tion, and approved the great mass of its provisions. (Jefferson, i., 79, 
and ii., 586.) But once he called it a kite set up to keep the hen-yard 


232 The Constitution, Opinions of Other Statesmen As to 

in order; (Jefferson, ii., 319) and with three or four new articles he 
would have preserved the venerable fabric of the old confederation as 
a sacred relic. 

To Madison he explained himself in a long and deliberate letter. A 
house of representatives elected directly by the people he thought would 
be far inferior to one chosen by the state legislatures; but he accepted 
that mode of election from respect to the fundamental principle that 
the people are not to be taxed but by representatives chosen immediate, 
ly by themselves. He was captivated by the compromise between the 
great and smaller states, and the method of voting in both branches 
of the legislature by persons instead of voting by states; but he utterly 
condemned the omission of a bill of rights, and the abandonment of 
the principle of rotation in the choice of the president. “I own,” he 
added of himself, “I am not a friend to a very energetic government;” 
for he held that it would be “always oppressive.” He presumed that 
Virginia would reject the new constitution; for himself he said: “It 
is my principle that the will of the majority should prevail; if they 
approve, I shall cheerfully concur in the proposed constitution, in hopes 
they will amend it whenever they shall find that it works wrong.” In 
February, 1788, he wrote to Madison and at least one more of his cor¬ 
respondents: “I wish with all my soul that the nine first conventions 
may accept the new constitution, to secure to us the good it contains; 
but I equally wish that the four latest, whichever they may be, may 
refuse to accede to it till a declaration of rights be annexed; but no 
objection to the new form must produce a schism in our union.” This 
was the last word from him which reached America in time to have 
any influence. But in May of that year, so soon as he heard of the 
method adopted by Massachusetts, he declared that it was far prefer¬ 
able to his own, and wished it to be followed by every state, especially 
by Virginia. To Madison he wrote in July: “The constitution is a 
good canvas on which some strokes only want retouching.” In 1789 
to a friend in Philadelphia he wrote with perfect truth: “I am not of 
the party of federalists; but I am much further from that of the anti¬ 
federalists.” 

The constitution was to John Adams more of a surprise than to 
Jefferson; but at once he formed his unchanging judgment, and in De¬ 
cember, 1787, he wrote of it officially to Jay: “The public mind can not 
be occupied about a nobler object than the proposed plan of govern¬ 
ment. It appears to be admirably calculated to cement all America in 
affection and interest as one great nation. A result of compromise can 
not perfectly coincide with every one’s ideas of perfection; but, as 
all the great principles necessary to order, liberty, and safety are re¬ 
spected in it, and provision is made for amendments as they may be 
found necessary, I hope to hear of its adoption by all the states.” 
John Adams’s Works, viii., 467; Diplomatic Correspondence, 1783-1789, 
v., 356. Bancroft on the History of the Constitution of the United 
States, pp. 406-7-8. 

Madison on the fourteenth replied: “There never was, there never 
will be, an efficient government in which both the sword and purse are 
not vested, though they may not be given to the same member of gov¬ 
ernment. The sword is in the hands of the British king; the purse in 
the hands of the parliament. It is so in America, as far as any analogy 


The Constitution, Jefferson's Opinion of It 233 

can exist. When power is necessary and can be safely lodged, reason 
commands its cession. From the first moment that my mind was capa¬ 
ble of contemplating political subjects I have had a uniform zeal for a 
well-regulated republican government. The establishment of it in 
America is my ardent desire. If the bands of the government be re¬ 
laxed, anarchy will produce despotism,. Faction and confusion preceded 
the revolutions in Germany; faction and confusion produced the dis¬ 
orders and commotions in Holland. In this commonwealth, and in 
every state in the Union, the relaxed operation of the government has 
been sufficient to alarm the friends of their country. The rapid in¬ 
crease of population strongly calls for a republican organization. There 
is more responsibility in the proposed government than in English. 
Our representatives are chosen for two years, in England for seven. 
Any citizen may be elected here; in Great Britain no one without an 
estate of the annual value of six hundred pounds sterling can represent 
a county; nor a corporation without half as much. If confidence be due 
to the government there, it is due tenfold here.” Bancroft on the His¬ 
tory of the Constitution of the United States, 428-9. 

Gladstone, said of it: 

“The American constitution i^ the most wonderful work ever struck 
off at a given time by the brain and purpose of man; but it had its 
forerunners.” Bancroft on the History of the Constitution of the 
United States, 441- 

On the twenty-seventh Hamilton replied by a full declaration of his 
opinions. “The establishment of a republican government on a safe 
and solid basis is the wish of every honest man in the United States, 
and is an object, of all others, the nearest and most dear to my own 
heart. This great purpose requires strength and stability in the or¬ 
ganization of the government, and vigor in its operations. The state 
governments are essentially necessary to the form and spirit of the 
general system. With the representative system a very extensive 
country may be governed by a confederacy of states in which the 
domestic legislature has only general powers, and the civil and domestic 
concerns of the people are regulated by the laws of the several states. 
State governments must form a leading principle. They can never lose 
their powers till the whole people of America are robbed of their 
liberties.” Bancroft on the History of the Constitution of the United 
States, 457. 


Jefferson’s Views of the Constitution. 

It was said by Mr. Jefferson’s enemies that he was opposed 
to and was an enemy of the Constitution. Nothing could be 
more untrue. The foregoing and following notes gives his true 
views. There were, of course, many provisions he did not like, 
and many things he desired added. This was true as to every 
man who aided in forming or adopting it. 


234 The Constitution, Jefferson's Opinion of It 

In 1787 Mr. Jefferson wrote to Mr. William Carmichael, as 
follows: 

Our new Constitution is powerfully attacked in the American news¬ 
papers. The objections are, that its effect would be to form the thir¬ 
teen States into one; that, proposing to melt all down into one gen¬ 
eral government, they have fenced the people by no declaration o f 
rights; they have not renounced the power of keeping a standing army, 
they have not secured the liberty of the press; they have not reserved 
the power of abolishing trials by jury in civil cases; they have pro- 
posed that the laws of the federal legislatures shall be paramount to 
the laws and constitutions of the States; they have abandoned rotation 
in office; and particularly, their President may be re-elected from four 
years to four years for life, so as to render him a King for life, like a 
King of Poland; and they have not given him either the check or aid 
of a council. To these they add calculations of expense, etc., etc., to 
frighten the people. You will perceive that these objections are serious, 
and some of them not without foundation. The Constitution, how¬ 
ever, has been received with a very general enthusiasm, and as far as 
can be judged from external demonstrations, the bulk of the people are 
eager to adopt it. 6 Jefferson's Writings, (mem. ed.J, pp. 380-381. 

In 1787 Mr. Jefferson wrote James Madison, as follows: 

I have little to fill a letter. I will, therefore, make up the deficiency, 
by adding a few words on the Constitution proposed by our convention. 

I like much the general idea of framing a government, which should 
go on of itself, peaceable, without needing continual recurrence to the 
State legislatures. I like the organization of the government into legis¬ 
lative, judiciary and executive. I like the power givefi the legislature 
to levy taxes, and for that reason solely, I approve of the greater House 
being chosen by the people directly. 6 Jefferson's Writings, (mem. 
ed.), pp. 386^87. 

I am captivated by the compromise of the opposite claims of the 
great and little States, of the latter to equal, and the former to propor¬ 
tional influence. I am much pleased, too, with the substitution of the 
method of voting by person, instead of that of voting by States; and I 
like the negative given to the Executive, conjointly with a third of 
either House; though I should have liked it better, had the judiciary 
been associated for that purpose, or invested separately with a similar 
power. There are other good things of less moment. I will now tell 
you what I do not like. First, the omission of a bill of rights, provid¬ 
ing clearly, and without the aid of sophism, for freedom of religion,, 
freedom of the press, protection against standing armies, restriction of 
monopolies, the eternal and unremitting force of the habeas corpus 
laws, and trials by jury in all matters of fact triable by the laws of 
the land, and not by the laws of the nations. 6 Jefferson's Writings, 
(mem. ed.), pp. 387-8. 

It would have been much more just and wise to have concluded the 
other way, that as most of the States had preserved with jealousy this 
sacred palladium of liberty, those who had wandered, should be brought 
back to it; and to have established general right rather than general 


The Constitution, Jefferson's Opinion of It 


TS5 


wrong. For I consider all the ill as established, which may be estab¬ 
lished. I have a right to nothing, which another has a right to take 
away; and Congress will have a right to take away trials by jury in all 
civil cases. Let me add, that a bill of rights is what the people are 
entitled to against every government on earth, general or particular; 
and what no just government should refuse, or rest on inference. 6 Jef¬ 
ferson's Writings, (mem. ed.), pp. 388-9. 

I do not pretend to decide, what would be the best method of pro¬ 
curing the establishment of the manifold good things in this constitu¬ 
tion, and of getting rid of the bad. Whether by adopting it, in hopes 
of future amendment; or after it shall have been duly weighed and 
canvassed by the people, after seeing the parts they generally dislike, 
and those they generally approve, to say to them, “We see now what 
you wish.” You are willing to give to your federal government such 
and such powers; but you wish, at the same time, to have such and such 
fundamental rights secured to you, and certain sources of convulsion 
taken away. 6 Jefferson's Writings, (mem. ed.), p. 390. 

At all events, I hope you will not be discouraged from making other 
trials, if the present one should fail. We are never permitted to de¬ 
spair of the commonwealth. I have thus told you freely what I like, 
and what I dislike, merely as a matter of curiosity; for I know it is not 
in my power to offer matter of information to your judgment, which 
has been formed after hearing and weighing everything which the wis¬ 
dom of man could offer on these subjects. I own, I am not a friend to 
a very energetic government. It is always oppressive. It places the 
governors indeed more at their ease, at the expense of the people. The 
late rebellion in Massachusetts has given more alarm, than I think it 
should have done. Calculate that one rebellion in thirteen States in 
the course of eleven years, is but one for each State in a century and a 
half. No country should be so long without one. Nor will any degree 
of power in the hands of government, prevent insurrections. In Eng¬ 
land, where the hand of power is heavier than with us, there are sel¬ 
dom half a dozen years without an insurrection. 6 Jefferson's Writings, 
(mem. ed.), p. 391. 

After all, it is my principle that the will of the majority should pre¬ 
vail. If they approve the proposed constitution in all its parts, I shall 
concur in it cheerfully, in hopes they will amend it, whenever they 
shall find it works wrong. This reliance can not deceive us, as long as 
we remain virtuous; and I think we shall do so, as long as agriculture 
is our principal object, which will be the case, while there remains 
vacant lands in any part of America. When we get piled upon one 
another in large cities, as in Europe, we shall become corrupt as in 
Europe, and go to eating one another as they do there. 6 Jefferson’s 
Writings, (mem. ed.), pp. 392-3. 

The instability of our laws is really an immense evil. I think it 
would be well to provide in our constitutions, that there shall always be 
a twelve-month between the engrossing a bill and passing it; that it 
should then be offered to its passage without changing a word; and 
that if circumstances should be thought to require a speedier passage, 
it should take two-thirds of both Houses, instead of a bare majority. 
6 Jefferson’s Writings, (mem. ed.), p. 393. 


236 The Constitution, Jefferson’s Opinion of It 

On December 21, 1787, Mr. Jefferson wrote Mr. Carrington, 
as follows: 

As to the new Constitution, I find myself nearly a neutral. There 
is a great mass of good in it, in a very desirable form; but there is also, 
to me, a bitter pill or two. I have written somewhat lengthily to Mr. 
Madison on this subject, and will take the liberty to refer you to that 
part of my letter to him. I will add one question to what I have said 
there. Would it not have been better to assign to Congress exclusively 
the article of imposts for federal purposes, and to have left direct taxa¬ 
tion exclusively to the States? I should suppose the former fund suffi¬ 
cient for all probable events, aided by the land office. 6 Jefferson's 
Writings, (mem. ed.), pp. 394-5. 

On May 27, 1788, Mr. Jefferson wrote to Mr. Carmichael as 
follows: 

I was much pleased with many and essential parts of this instru¬ 
ment, from the beginning. But I thought I saw in it many faults, great 
and small. What I have read and reflected has brought me over from 
several of my objections of the first moment, and to acquiesce under 
some others. Two only remain, of essential consideration, to wit, the 
want of a bill of rights, and the expunging the principle of necessary 
rotation in the offices of President and Senator. At first I wished that 
when nine States should have accepted the constitution, so as to insure 
us what is good in it, the other four might hold off till the want of the 
bill of rights, at least, might be supplied. But I am now convinced that 
the plan of Massachusetts is the best, that is, to accept, and to amend 
afterwards. If the States which were to decide after her, should all 
do the same, it is impossible but they must obtain the essential amend¬ 
ments. It will be more difficult, if we lose this instrument, to recover 
what is good in it, than to correct what is bad, after we shall have 
adopted it. It has, therefore, my hearty prayers. 7 Jefferson's Writ¬ 
ings (mem. ed.), pp. 28-9. 

On the same day Mr. Jefferson wrote to Col. Carrington as 
follows: 

The second amendment which appears to me essential is the restor¬ 
ing the principle of necessary rotation, particularly to the Senate and 
Presidency: but most of all to the last. Re-eligibility makes him an 
officer for life, and the disasters inseparable from an elective monarchy, 
render it preferable if we can not tread back that step, that we should 
go forward and take refuge in an hereditary one. Of the correction of 
this article, however, I entertain no present hope, because I find it has 
scarcely excited an objection in America. And if it does not take place 
ere long, it assuredly never will. The natural progress of things is for 
liberty to yield and the government to gain ground. As yet our spirits 
are free. Our jealousy is only put to sleep by the unlimited confidence 
we all repose in the person to whom we all look as our president. After 
him inferior characters may perhaps succeed, and awakens us to the 
danger which his merit has led us into. For the present, however, the 
general adoption is to be prayed for. 7 Jefferson's Writings, (mem. 
ed.), pp. 36-7. 


\ 

The Constitution, Opposition to It 237 

The Making of the Constitution 

On March 18, 1789, Mr. Jefferson wrote 1 to Col. Humphreys: 

The operations which have taken place in America lately, fill me 
with pleasure. In the first place, they realize the confidence I had, 
that whenever our affairs go obviously wrong, the good sense of the 
people will interpose, and set them to rights. The example of chang¬ 
ing a constitution, by assembling the wise men of the State, instead of 
assembling armies, will be worth as much to the world as the former 
examples we had given them. The Constitution, too, which was the 
result of our deliberations, is unquestionably the wisest ever yet pre¬ 
sented to men, and some of the accommodations of interest which it 
has adopted, are greatly pleasing to me, who have before had occasions 
of seeing how difficult those interests were to accommodate. A gen¬ 
eral concurrence of opinion seems to authorize us to say it has some 
defects. I am one of those who think it a defect, that the important 
rights, not placed in security by the frame of the Constitution itself, 
were not explicitly secured by a supplementary declaration. There are 
rights which it is useless to surrender to the government, and which 
governments have yet always been found to invade. These are the 
rights of thinking, and publishing our thoughts by speaking or writ¬ 
ing; the right of free commerce; the right of personal freedom. There 
are instruments for administering the government, so peculiarly trust¬ 
worthy, that we should never leave the legislature at liberty to change 
them. The new Constitution has secured these in the executive and 
legislative departments; but not in the judiciary. It should have es¬ 
tablished trials by the people themselves, that is to say, by jury. There 
are instruments so dangerous to the rights of the nation, and which 
place them so totally at the mercy of their governors, that those gover¬ 
nors, whether legislative or executive, should be restrained from keep¬ 
ing such instruments on foot, but in well-defined cases. Such an instru¬ 
ment is a standing army. 7 Jefferson's Writings, (mem. ed.), pp. 
822-323. 

Hostility and Opposition to the Constitution 

It was well said by John Quincy Adams that the Constitution was 
“extorted from the grinding necessity of a reluctant nation.” It was 
accepted by a small majority as the only alternative to disruption and 
anarchy. Its ratification was the success of the men who were inter¬ 
ested in the security of property, the maintenance of order, and the 
enforcement of obligations against those who desired communism, law. 
lessness and repudiation. It was a conflict between the cities and the 
backwoods, between the mountains and the plains. And the opposition 
was led by those cliques and families who had learned to control for 
their private interests the state patronage of which the new govern¬ 
ment must necessarily deprive them. 

The battle was waged on the stump and by pamphleteering, and 
gave birth to that great repository of political science, The Federalist. 
Foster on the Constitution, Vol. 1, p. 3. 

The Federal Convention itself held its debates in secret for fear 
lest the public should become so excited that there would be no hope 

x The sentiment expressed in this let- amendments to the Constitution, 
ter led to several of the first ten 


238 


Objections to the Constitution 


of any successful result of the deliberations. Twice at least was it on 
the point of breaking up in despair. So little hope did there seem of 
any practical result, that at last the sceptic Franklin advised his col¬ 
leagues to take refuge in prayer. Even at the end, it was the belief of 
the strongest supporters of the Constitution, that it could not hold the 
country together for more than a few years. 

Elements of discord abounded in that small assembly. The States 
which were prominent in wealth and population protested against the 
injustice of vesting the control elsewhere than in a majority of popula¬ 
tion or of property. The smaller States, which in the Continental 
Congress and under the Confederation had an equal vote, insisted that 
they would never surrender the right which they had thus obtained. 
Foster on the Constitution, Yol. 1. p. 5. 

Objections to the Constitution 

It can not be forgotten, that among the arguments addressed to 
those who apprehend danger to liberty from the establishment of the 
general government over so great a country, the appeal was emphati¬ 
cally made to the intermediate existence of the State governments, be¬ 
tween the people and that government; to the vigilance with which they 
would decry the first symptoms of usurpation; and to the promptitude 
with which they would sound the alarm to the public. This argument 
was probably not without its effect; and if it was a proper one then to 
recommend the establishment of the Constitution, it must be a proper 
one now to assist in its interpretation. 1 4 Writings of Madison, p. 
554-555. 

In 1787, November 13, Mr. Jefferson thus wrote to Mr. John 
Adams r 1 


How do you like our new Constitution? I confess there are things 
in it which stagger all my dispositions to subscribe to what such an 
Assembly has proposed. The house of federal representatives will not 
be adequate to the management of affairs, either foreign or federal. 
Their President seems a bad edition of a Polish King. He may be 
elected from four years to four years, for life. Reason and experience 
prove to us, that a chief magistrate, so continuable, is an office for life. 
When one or two generations shall have proved that this is an office 
for life, it becomes, on every occasion, worthy of intrigue, of bribery, 
of force, and even of foreign interference. It will be of great conse¬ 
quence to France and England, to have America governed by a Gallo- 
man or Angloman. Once in office, and possessing the military force of 
the union, without the aid or check of a council, he would not be easily 
dethroned, even if the people could be induced to withdraw their votes 
from him. I wish that at the end of the four years they had made him 
forever ineligible a second time. Indeed, I think all the good of this 
new Constitution might have been couched in three or four new articles, 


x The present tendency is to destroy 
all protection which the States can 
afford the people. To take all the 
power that was reserved to the States 
or the people thereof, and vest it in 
one central government, and then 


vest all those powers in one person, 
the President. We are surely headed 
toward monarchy. 

1 Were Jefferson living to-day, he 
could truly say to Adams, “I told you 
so.” 


Objections to the Constitution 


239 


to be added to the good, old venerable fabric, which should have been 
preserved even as a religious relique. 6 Jefferson's Writings , (mem. 
ed.), p. 370. 

On July 31, 1788, Mr. Jefferson wrote Mr. Madison: 

Why suspend the habeas corpus in insurrections and rebellions? 
The parties who may be arrested, may be charged instantly with a well- 
defined crime; of course, the judge will remand them. If the public 
safety requires that the government should have a man imprisoned on 
less probable testimony, in those than in other emergencies, let him 
be taken and tried, retaken and retried, while the necessity continues, 
only giving him redress against the government, for damages. Ex¬ 
amine the history of England. See how few of the cases of the sus¬ 
pension of the habeas corpus law, have been worthy of that suspension. 
Jefferson's Writings, (mem. ed.), p. 97. 

If no check can be found to keep the number of standing troops 
within safe bounds, while they are tolerated as far as necessary, aban¬ 
don them altogether, discipline well the militia, and guard the maga¬ 
zines with them. More than magazine guards will be useless, if few, 
and dangerous, if many. No European nation can ever send against us 
such a regular army as we need fear, and it is hard, if our militia are 
not equal to those of Canada or Florida. My idea then, is that though 
proper exceptions to these general rules are desirable, and probably 
practicable, yet if the exceptions can not be agreed on, the establish¬ 
ment of the rules, in all cases, will do ill in very few. I hope, there¬ 
fore, a bill of rights will be formed, to guard the people against the 
federal government, as they are already guarded against their State 
governments, in most instances. 7 Jefferson's Writings, (mem. ed.), 
pp. 98-9. 

On August 27, 1788, Mr. Jefferson wrote Mr. Carmichael as 
follows: 

Though I am much pleased with this successful issue of the New 
Constitution, yet I am more so, to find that one of its principal defects 1 
(the want of a declaration of rights) will pretty certainly be remedied. 
I suppose this, because I see that both people and conventions, in al¬ 
most every State, have concurred in demanding it. Another defect, the 
perpetual re-eligibility of the same President, will probably not be 
cured during the life of General Washington. His merit has blinded 
our countrymen to the danger of making so important an officer re- 
eligible. I presume there will not be a vote against him in the United 
States. It is more doubtful who will be Vice-President. The age of 
Dr. Franklin and the doubt whether he could accept it, are the only cir¬ 
cumstances that admit a question, but that he would be the man. 
After these two characters of first magnitude, there are so many which 
present themselves equally, on the second line, that we can not see 
which of them will be singled out. John Adams, Hancock, Jay, Madi¬ 
son, Rutledge, will all be voted for. 7 Jefferson's Writings, (mem. ed.), 
pp. 12Jf-5. 

1 Some of Mr. Jefferson’s objections were cured by the first ten amendments. 


240 


Objections to the Constitution 


Mr. Jefferson, in a letter to Mr. Madison, November 18, 1788, 
acknowledging a copy of the Federalist papers written by Jay, 
Hamilton, and Madison, says : 

With respect to the Federalist, the three authors C) had been named 
to me. I read it with care, pleasure and improvement, and was satis¬ 
fied there was nothing in it by one of those hands, and not a great deal 
by a second. It does the highest honor to the third, as being, in my 
opinion, the best commentary on the principles of government, which 
ever was written. In some parts, it is discoverable that the author 
means only to say what may be best said in defence of opinions, in 
which he did not concur. But in general, it establishes firmly the plan 
of government. I confess, it has rectified me on several points. As to 
the bill of rights, however, I still think it should be added; and I am 
glad to see that three States have at length considered the perpetual 
re-eligibility of the President, as an article which should be amended. 
I should deprecate with you, indeed, the meeting of a new convention. 
I hope they will adopt the mode of amendment by Congress and the 
Assemblies, in which case, I should not fear any dangerous innovation 
in the plan. 

On December 4, 1788, Mr. Jefferson wrote Gen. Washington 
as follows: 

I have seen with infinite pleasure, our new Constitution accepted by 
eleven States, not rejected by the twelfth; and that the thirteenth hap¬ 
pens to be a State of the least importance. It is true, that the minori¬ 
ties in most of the accepting States have been very respectable; so much 
so as to render it prudent, were it not otherwise reasonable, to make 
some sacrifice to them. I am in hopes, that the annexation of a bill 
of rights to the Constitution will alone draw over so great a proportion 
of the minorities as to leave little danger in the opposition of the resi¬ 
due; and that this annexation may be made by Congress and the As¬ 
sembles, without calling a convention, which might endanger the most 
valuable parts of the system. 7 Jefferson's Writings, (mem. ed.), p. 
223. 

On February 9, 1789, Mr. Jefferson wrote to Mr. Short, as 
follows: 

Gen. Washington will be President, and probably Mr. Adams Vice 
President. So that the Constitution will be put under way by those 
who will give it a fair trial. It does not seem probable that the at¬ 
tempt of New York to have another convention to make amendments, 
will succeed, though Virginia concurs in it. It is tolerably certain that 
Congress will propose amendments to the Assemblies, as even the 
friends of the Constitution are willing to make amendments; some from 
a conviction they are necessary, others, from a spirit of conciliation. 

J The authors were, of course, Jay, refers to Madison or Hamilton when 

Hamilton, and Madison. Jay wrote he says, the author is writing the 

very few of the papers, Hamilton most, views of others and not of himself 

and Madison the remainder. It is though most probably to Madison 

doubtful as to whether Mr. Jefferson 


Objections to the Constitution 


241 


The addition of a bill of rights, will, probably, be the most essential 
change. 7 Jefferson's Writings, (mem. ed.J, pp. 282-3. The first ten 
amendments constituted the “bill of rights.” 

On March 13, 1789, Mr. Jefferson wrote Mr. Hopkinson as 
follows: 

You say that I have been dished up to you as an anti-federalist, 
and ask me if it be just. My opinion was never worthy enough of 
notice to merit citing; but since you ask it, I will tell it to you. I am 
not a federalist, because I never submitted the whole system of my 
opinion to the creed of any party of men whatever, in religion, in 
philosophy, in politics or in anything else, where I was capable of 
thinking for myself. Such an addiction, is the last degradation of a 
free and moral agent. If I could not go to heaven but with a party, 
I would not go there at all. Therefore, I am not of the party of fed¬ 
eralists. But I am much farther from that of the anti-federalists. I 
approved, from the first moment, of the great mass of what is in the 
new Constitution; the consolidation of the government; the organiza¬ 
tion into executive, legislative and judiciary; the subdivision of the 
legislative; the happy compromise of interests between the great and 
little States, by the different manner of voting in the different Houses; 
the voting by persons instead of States; the qualified negative on laws 
given to the executive, which, however, I should have liked better if 
associated with the judiciary also, as in New York; and the power of 
taxation. I thought at first that the latter might have been limited. 
A little reflection soon convinced me it ought not to be. 7 Jefferson's 
Writings, (mem. ed.J, p. 300. 

With respect to the re-eligibility of the President, I find myself 
differing from the majority of my countrymen; for I think there are 
but three States out of the eleven which have desired an alteration of 
this. And indeed, since the thing is established, I would wish it not 
to be altered during the life of our great leader, whose executive 
talents are superior to those, I believe, of any man in the world, and 
who, alone, by the authority of his name and the confidence reposed in 
his perfect integrity, is fully qualified to put the new government so 
under way, as to secure it against the efforts of opposition. But, hav¬ 
ing derived from our error all the good there was in it, I hope we shall 
correct it, the moment we can no longer have the same name at the 
helm. 7 Jefferson's Writings , (mem. ed.J, pp. 301-2, note. The enemies 
of Mr. Jefferson have always insisted upon placing him as an enemy of 
the Constitution, and of Washington. No greater wrong was ever 
done this great and noble statesman. The two quotations show the 
falsity of these charges. 

In 1786, Mr. Jefferson wrote to a friend; 

The aspect of our politics has wonderfully changed since you left us. 
In place of that noble love of liberty and republican government, 
which carried us triumphantly through the war, an Anglican mon- 
archial aristocratical party has sprung up, whose avowed object is to 
draw over us the substance, as they have already done the forms, of 
the British government. The main body of our citizens, however, re- 


242 


Objections to the Constitution 


main true to their republican principles; the whole landed interest is 
republican, and so is a great mass of talents. 9 Jefferson's Writings , 
(mem. ed.), pp. 335-6. 

If Mr. Adams 1 can be induced to administer the government on its 
true principles, and to relinquish his bias to an English constitution, 
it is to be considered whether it would not be on the whole for the 
public good to come to a good understanding with him as to his future 
elections. He is perhaps the only sure barrier against Hamilton’s 
getting in. 9 Jefferson's Writings, (mem. ed.), p. 359. 

Mr. Jefferson is authority for the contention that in the 
early history of the United States, there was a strong party 
headed by Hamilton and Adams, who desired to establish a 
Monarchical government in lieu of that established by the Con¬ 
stitution. If Mr. Jefferson is correct there is no doubt of the 
fact, though it has been denied on high authority. Among the 
last letters he wrote, is one to Wm. Short, in 1825, which gives 
the facts. See 16 Jefferson’s Writings, 92, et seq. The follow¬ 
ing are excerpts from this letter: 

At my own table, in presence of Mr. Adams, Knox, Randolph, and 
myself, in a dispute between Mr. Adams and himself [Mr. Hamilton], 
he avowed his preference of monarchy over every other government, 
and his opinion that the English was the most perfect model of gov¬ 
ernment ever devised by the wit of man, Mr. Adams agreeing “if its 
corruptions were done away.” While Hamilton insisted that “with 
these corruptions it was perfect, and without them it would be an im¬ 
practicable government.” Can any one read Mr. Adams’ defence of 
the American Constitutions without seeing that he was a monarchist? 
And J. Q. Adams, the son, was more explicit than the father, in his 
answer to Paine’s Rights of Man. So much for leaders. Their follow¬ 
ers were divided. Some went the same lengths; other, and I believe 
the greater part, only wished a stronger Executive. 16 Jefferson's 
Writings, (mem. ed.), p. 93. 

Monarchy, to be sure, is now defeated, and they wish it should be 
forgotten that it was ever advocated. They see that it is desperate, 
and treat its imputation to them as a calumny; and I verily believe 
that none of them have it now in direct aim. Yet the spirit is not 
done away. The same party take now what they deem the next best 
ground, the consolidation of the government; the giving to the federal 
member of the government, by unlimited constructions of the Con¬ 
stitution, a control over all the functions of the States, and the con¬ 
centration of all power ultimately at Washington. 16 Jefferson's 
Writings (mem. ed.), p. 95. 


1 The foregoing letter shows what he 
feared. Strange as it may seem, 
Adams nor Hamilton was not Adams’ 
successor, he was no other than Mr. 
Jefferson himself, and hut for Hamil¬ 
ton and Washington, it would have 
been Burr. This act of Hamilton in 
choosing between Burr and Jefferson 
probably cost him his life. Burr 
thought that as he and Hamilton were 


from the .same State and the known 
differences of views between Jefferson 
and Hamilton, such as to cause Jeffer¬ 
son to resign the position of Secretary 
of State under the second administra¬ 
tion of Washington, that Hamilton 
could and should support Burr, but he 
favored Jefferson, and Burr never for¬ 
gave him, and this probably led to th% 
duel in which Hamilton lost his life. 


Written and Unwritten Constitutions 


243 


Some of the main defects argued against the adoption of the 
original Constitution, we see, were the re-eligibility of the 
President. The want of a counsel from all the States, and a 
bill of rights; this defect was cured by the first ten amend¬ 
ments. The friends of the Constitution candidly admitted that 
the Constitution had defects, but claimed and insisted truth¬ 
fully, that it was the best which the political situation, the 
habits and customs would admit, and better than that of any 
other nation or government up to that time. They also then said 
truly that some of its defects would be cured by amendments, 
especially the one as to the lack of a bill of rights, and such 
were proposed by the first Congress which assembled under it, 
and ten of the thirteen amendments were ratified. Hamilton 
said we need never expect to se$ a people work from imperfect 
to perfect. That the result of any deliberative body must nec¬ 
essarily be a compound of errors and prejudices, as well as of 
good sense and wisdom. Time alone can bring it to perfection. 
Inconvenience will cause mistakes to be banished. Hamilton 
and Madison thought that the establishment of the constitution 
in time of peace was a prodigy. Gladstone pronounced it the 
grandest work ever struck off by the hand of man. 

Written and Unwritten Constitutions 

Unwritten constitutions, such as England’s or Great Brit¬ 
ain’s, are not in truth constitutions in the sense the term is 
used in America. They are made up of traditions, customs, 
grants, charters of Kings, and rulers, statutes, etc., all of which 
are subject to change or obliteration by some power other than 
the people. There are in such governments some power, such 
as Parliament, the King, the Emperor, the Czar, or other dicta¬ 
tor, which can either change, obliterate, or disregard any con¬ 
stitutional provision. Hence, they are not constitutions in the 
sense we use the term. 

The so-called unwritten constitution of Great Britain consists, in 
large measure, of acts of parliament, royal grants and charters, dec¬ 
larations of rights and decisions of the courts. It also comprises cer¬ 
tain maxims, principles, or theories of government which, though not 
enacted with the force of law, have always been acquiesced in by the 
people and acted upon by the rulers, and thus, possessing historic 
continuity, may be said to enter into the fundamental conception of the 
nature and system of the government. The differences between written 
and unwritten constitutions, as these terms generally employed, are 
chiefly as follows: First. A written constitution sums up in one in¬ 
strument tue whole of what is considered to belong to the constitution 


244 


The Constitution, When and How Made 


of the state; whereas, in the case of an unwritten constitution, its 
various parts are to be sought in diverse connections, and are partly 
statutory and partly customary. Second. A written constitution is 
either granted by the ruler or ordained by the people at one and the 
same time; while an unwritten constitution is gradually developed, and 
is contributed to not only by the executive and legislative branches of 
government, but also by the courts, and by the recognition, by rulers 
and people, of usages and theories gradually acquiring the force of law. 
Third. A written constitution is a creation or product, while an un¬ 
written constitution is a growth. The one may be influenced, in its 
essentials, by history, but is newly made and set forth. The other is 
not only defined by history, but, in a measure, is history. Fourth. A 
written constitution, in its letter, if not in its spirit, is incapable of 
further growth or expansion. It is fixed and final. An unwritten con¬ 
stitution, on the other hand, will expand and develop, of itself, to meet 
new exigencies or changing conditions of public opinion or political 
theory. Fifth. A written constitution, at least in a free country, is a 
supreme and paramount law, whieh all must obey, and to which all 
statutes, all institutions, and all governmental activities must bend, 
and which can not be abrogated except by the people who created it. 
An unwritten constitution may be altered or abolished, at any time or 
in any of its details, by the lawmaking power. Black on Constitutional 
Laws, 6. 

Paper constitutions have been the target for the ridicule of most 
writers during the present century who have thought themselves pplit- 
ical philosophers. Unstable as water, they can not excel, had been the 
judgment upon them by historians. “Have you a copy of the French 
Constitution?” was asked of a bookseller during the French Republic. 
“We do not deal in periodical literature,” was the reply. In the United 
States, and only in the United States, has a written constitution sur¬ 
vived a hundred years, while during the same time the forms of the 
governments of all other nations have changed more often and more 
radically than have their respective boundaries. Foster on the Consti¬ 
tution, Yol. 1, p. 1. 

When and How the Constitution Was Made 

It was not until the 25th of May, 1787, that a majority of States 
were represented at Philadelphia. The Federal Convention then or¬ 
ganized and elected president George Washington. Rhode Island took 
no part in the proceedings; but delegates, appointed by the legislatures 
of the other twelve States, finally appeared. On September 17th the 
Constitution was completed and was signed by less than three-fourths 
of the delegates who attended, many of these doubting its wisdom and 
fearing its failure, but accepting the scheme as the only chance of 
escape from anarchy and dissolution. The delegates with most in¬ 
fluence in the Convention were James Madison of Virginia, the two 
Pinckneys of South Carolina, Rufus King of Massachusetts, Roger 
Sherman of Connecticut, James Wilson of Pennsylvania, and Gouver- 
neur Morris of the last named State, to whose pen the style of the 
instrument owes its symmetry and clarity. Hamilton and Franklin 
would have preferred different forms of government, the former one 
more aristocratic, the latter more of a democracy; but Franklin ren- 


The Constitutional Convention 


245 


dered great service in promoting harmony in the convention, and Ham¬ 
ilton in securing the subsequent ratification. Congress eleven days 
after the close of the Convention, without any recommendation, trans¬ 
mitted the document to the State legislatures for submission to State 
conventions. On June 21, 1787, it was ratified by the ninth State, New 
Hampshire, and was then binding upon all who had previously acceded; 
but it did not go into effect until the assemblage of the first Congress 
at Philadelphia on March 3, 1789. Foster on the Constitution, Vol. 

1, pp. 21-22. 


Proceedings of the Convention Which Made the Constitution 

Mr. Webster, in his remarks on the subject of making an 
appropriation to purchase the Madison 1 papers, said: 

It is well known that the convention of great men who formed our 
Constitution sat with closed doors; that no report of their proceedings 
was published at that time; and that their debates were listened to by 
none but themselves and the officers in attendance. We have, indeed, 
the official journal kept by this order. It is an important document, 
but it informs us only of their official acts. We get from it nothing 
whatever of the debates in that illustrious body. Besides this, there are 
only a few published sketches, more or less valuable. But the connec¬ 
tion of Mr. Madison with the Constitution and the government, and 
his profound knowledge of all that related to both, would necessarily 
give to any reports which he should have taken a superior claim to 
accuracy. It was his purpose when he entered the body, to report its 
whole proceedings. He chose a position which best enabled him to do 
so; nor was he absent a single day during the whole period of its 
sittings. It was further understood that his report of the leading 
speeches had been known to them all, that he was thus collecting ma¬ 
terials for a detailed report of their proceedings. 4 Webster's Works, 
(7th eel.), pp. 301-302. 

Madison, the Father of the Constitution 

Here is ivliat Mr. Jefferson said of him in 1812 j^ 

You probably do not know Mr. Madison personally, or at least in¬ 
timately, as I do. I have known him from 1779, when he first came into 
the public councils, and from three and thirty years trial. I can say 
conscientiously that I do not know in the world a man of purer in¬ 
tegrity, more dispassionate, disinterested and devoted to genuine re¬ 
publicanism; nor could I, in the whole scope of America and Europe, 
point out an abler head. 13 Jefferson's Writings, (mem. eel.), p. 190. 


The Constitutional Convention 


The Federal Convention was composed of men who had been accus^ 
tomed to rule and legislate in the camp and in the senate. They had 


1 Mr. Madison is well and fitly called 
the Father of the Constitution. He 
did not belong to either extreme, hut 
occupied medium ground between the 
two extremes. As the Constitution 
was a compromise between those who 
wished to destroy the States and form 
one central government, and those who 


wished to take from the States few. 
if any of their sovereign powers, and 
desired merely to form a new Confed¬ 
eracy of the States, the Constitution 
was therefore more in accord with his 
views than of any other member in 
the Convention. 


246 


Records of the Convention 


learned by experience the impossibility of foreseeing the results of un¬ 
tried forms of government, founded on a priori reasoning. They had 
suffered, not only from the arbitrary powers of the crown and Parlia¬ 
ment, but also from the imbecility of Congress. They had realized, too, 
the evils resulting from hasty action by State legislatures unrestricted 
from making breaches of the public faith and setting aside private 
contracts. They had acquired by tradition, as well as from the study 
of “The Spirit of the Laws,” that respect for the British Constitution 
with which Montesquieu had inspired Europe. The superiority of the 
State Constitutions, which bore to that a resemblance, over the 
Articles of Confederation, was of easy recognition. As soon as it was 
determined that the new government should be national in form 1 , they 
turned for instruction to the description of the Constitution of Great 
Britain by Sir William Blackstone. Foster on the Constitution, Vol. 1, 
pp. 38-9. 

The convention was composed of delegates from all the states except 
Rhode Island. The resolution from which they derived their authority 
contemplated nothing more than a revision of the articles of confedera¬ 
tion. But the convention was not long in determining that the whole 
scheme of government therein contained was so defective that it was 
beyond hope that the evils and inconveniences complained of by the 
people could be remedied by any process of patching or mending the 
old constitution. In their judgment, what was needed was an entirely 
new frame of government. And this they proceeded to construct. Black 
on Constitutional Laws, 40-1. 

The draft of the construction was laid before Congress and by them 
submitted to the several states. It contained a provision that as soon 
as it should have been ratified by nine of the states, it should become 
binding on those states. There ensued long, exhaustive, and acrimon¬ 
ious debates on the question of its adoption. But in the course of a 
year eleven of the states had ratified the constitution, and in September, 
1788, Congress made provision for the first election of federal officers 
and the inauguration of the national government under the new con¬ 
stitution. On the 30th of April, 1789, the first President of the United 
States took the oath of office, and the present government began the 
exercise of its functions as marked out in the constitution. The states 
of North Carolina and Rhode Island were not in the Union from the 
beginning. The former ratified the constitution in 1789, and the latter 
in 1790. Black on Constitutional Laws, 41- 

Records of the Constitutional Convention 

The Constitutional Review thus makes reference to the most 
recent and exhaustive treaties and collection on this subject: 

The Records of the Federal Convention of 1787. Edited by Max 
Farrand, Professor of History in Yale University. Three Vol¬ 
umes, Vol. I, pp. xxv, 606. Vol. II, pp. 667, Vol. Ill, pp. 685. New 
Haven: Yale University Press, 1911. 

In compiling these three sumptuous volumes, Professor Farrand has 
admirably acquitted himself of a most laborious task, and has ren- 

Uts form is not wholly national, son, in the Federalist, clearly defines 
nor wholly republican, it is wholly its character and purposes, 
neither, and partly both. Mr. Madi- 


The Constitution, By Whom Adopted and Ordained 247 

dered a service to all students of the American constitutional system 
and to all future historians which deserves and will certainly receive 
their grateful appreciation. For he has here assembled all the avail¬ 
able “source” material upon the constitutional convention of 1787, 
hitherto scattered through various printed volumes and some of it 
never before published, in what we must believe to be the final and 
definite work on the subject, since it is highly improbable that any 
further combing of the original materials would yield items of any 
importance, and since it would hardly be possible to improve on Pro¬ 
fessor Farrand’s use and arrangement of his documents. The Constitu¬ 
tional Review, Yol. I, 58. 

By Whom the Constitution Was Adopted or Ordained 

Mr. Calhoun thus shows that the States adopted it: 

The usual form of expression used by some of the States is: “We, 
the delegates of the State,” (naming the State) “do, in behalf of the 
people of the State, assent to, and ratify the said constitution.” All 
use, “ratify,” and all, except North Carolina, use, “assent to.” The 
delegates of that State use, “adopt,” instead of “assent to;” a variance 
merely in the form of expression, without in any degree, affecting the 
meaning. Ratification was, then, the act of the several States in their 
separate capacity. It was performed by delegates appointed expressly 
for the purpose. Each appointed its own delegates; and the delegates 
of each, acted in the name of, and for the State appointing them. 
Their act consisted in, “assenting to,” or, what is the same thing, 
“adopting and ratifying” the constitution. 

By turning to the seventh article of the constitution, and to the 
preamble, it will be found what was the effect of ratifying. The article 
expressly provides, that, “the ratification of the conventions of nine 
States, shall be sufficient for the establishment of this constitution, 
between the States so ratifying the same.” The preamble of the Con¬ 
stitution is in the following words: “We, the people of the United 
States, in order to form a more perfect union, establish justice, insure 
domestic tranquillity, provide for the common defence, promote the 
general welfare, and secure the blessings of liberty to ourselves and our 
posterity, do ordain and establish this constitution for the United 
States of America.” The effect, then of its ratification was, to ordain 
and establish the constitution; and, thereby, to make, what was before 
but a plan. 1 Calhoun's Works, pp. 126-7. 

Mr. Calhoun’s theory was that the Constitution was ordained 
by the States, through commissioners or delegates who were 
chosen by the people of the respective States, that the dele¬ 
gates so chosen acted by and in the names of their respective 
States. He also concluded that it was established for “The 
United States of America,” that is, for the States composing 
the Union—to secure their common welfare and safety, as dis¬ 
tinct and sovereign communities. He concedes, however, that 
it was not ordained and established over them, but between 
them. It was therefore a contract or compact, between them 


248 The Constitution, By Whom Adopted and Ordained 


as parties thereto, but not as a law over them. This was the 
great and distinguishing difference between Mr. Calhoun and 
his school, and Mr. Webster and his school. 

Those who oppose this conclusion, and maintain the national char¬ 
acter of the government, rely, in support of their views, mainly on the 
expressions, “we, the people of the United States,” used in the first 
part of the preamble; and, “do ordain and establish this constitution 
for the United States of America,” used in its conclusion. Taken to¬ 
gether, they insist, in the first place, that, “we, the people,” mean, the 
people in their individual characters, as forming a single community; 
and that, “the United States of America,” designates them in their 
aggregate character, the American people. In maintaining this con¬ 
struction, they rely on the omission to enumerate the States by name, 
after the word “people,” so as to make it read, “We, the people of 
New Hampshire, Massachusetts, &c.,” as was done in the articles of the 
confederation, and, also, in signing the Declaration of Independence; 
and, instead of this, the simple use of the general term “United States.” 
1 Calhoun's Works, p. 132. 

In enumerating the objects for which the constitution was ordained 
and established, the preamble places at the head of the rest, as its lead¬ 
ing object, “to form a more perfect union.” So far, then, are the 
terms, “ordained and established,” from being incompatible with the 
union, or having the effect of destroying it, the constitution itself 
declares that it was intended, “to form a more perfect union.” 1 Cal¬ 
houn's Works, pp. 135-6. 

It everywhere recognizes the existence of the States, and invokes 
their aid to carry its powers into execution. In one of the two houses 
of Congress, the members are elected by the legislatures of their re¬ 
spective States; and in the other, by the people of the several States, 
not as composing mere districts of one great community, but as dis¬ 
tinct and independent communities. General Washington vetoed the 
first act apportioning the members of the House of Representatives 
among the several States, under the first census, expressly on the 
ground, that the act assumed as its basis, the former, and not the 
latter construction. The President and Vice-President are chosen by 
electors, appointed by their respective States; and, finally, the Judges 
are appointed by the President and the Senate; and, of course, as these 
are elected by the States, they are appointed through their agency. 
1 Calhoun's Works, pp. 137-8. 

Mr. Calhoun further says: 

The theory of the nationality of the government, is, in fact, founded 
on fiction. It is of recent origin. Few, even yet, venture to avow it to 
its full extent; while they entertain doctrines, which spring from, and 
must necessarily terminate in it. They admit that the people of the 
several States form separate, independent, and sovereign communities; 
and that, to this extent, the constitution is federal; but beyond this, 
and to the extent of the delegated powers—regarding them as forming 
one people or nation, they maintain that the constitution is national. 
1 Calhoun's Works, p. 11/0. 


The Constitution, By Whom Adopted and Ordained 249 

It is difficult to imagine how a doctrine so perfectly absurd, as that 
the States are federal as to the reserved, and national as to the del- 
egated powers, could have originated; except through a misconception 
of the meaning of certain terms, sometimes used to designate the latter. 
They are sometimes called granted powers; and at others, are said to 
be powers surrendered by the States. When these expressions are used 
without reference to the fact, that all powers, under our system of gov¬ 
ernment, are trust powers, they imply that the States have parted with 
such as are said to be granted or surrendered, absolutely and irrevo¬ 
cably. The case is different when applied to them as trust powers. 
They then become identical, in their meaning, with delegated powers; 
for to grant a power in trust, is what is meant by delegating it. It is 
not, therefore, surprising, that they who do not bear in mind'that all 
powers of government are, with us, trust powers, should conclude that 
the powers said to be granted and surrendered by the States, are ab¬ 
solutely transferred from them to the government of the United States, 
as is sometimes alleged, or to the people as constituting one nation, as 
is more usually understood; and, thence, to infer that the government 
is national to the extent of the granted powers. 1 Calhoun's Works, pp. 
142-3. 

Mr. Calhoun insisted that the constitution no more created a 
national government, than did the Articles of Confederation, 
but only made a more perfect union; and that after the Con¬ 
stitution was formed, each State retained all its original sover¬ 
eignty, freedom and independence, that it did under the Con¬ 
federation. That even as to the powers granted to the United 
States, they were granted only in trust for the States. In 
other words, that the grant was in trust, and not absolute—a 
grant by the States to the United States for the use and benefit 
of the States—a mere naked trust. 

Mr. Calhoun claimed that the States have never parted abso¬ 
lutely with any of their sovereign powers; that the grants 
thereof contained in the Constitution, were only in trust for 
the States. He thus states his opinion: 

That the articles of confederation, in delegating powers to the 
United States, did not intend to declare that the several States had 
parted with any portion of their sovereignty, is placed beyond doubt 
by the declaration contained in them, that, “each State retains its sov¬ 
ereignty, freedom, and independence;’’ and it may be fairly inferred, 
that the framers of the constitution, in borrowing this expression, did 
not design that it should bear a different interpretation. 

If it be possible still to doubt that the several States retained their 
sovereignty and independence unimpaired, strong additional arguments 
might be drawn from various other portions of the instrument; es¬ 
pecially from the third article, section third, which declares, that, 
“treason against the United States, shall consist only in levying war 
against them or in adhering to their enemies, giving them aid and 
comfort.” It might be easily shown that, “the United States,” mean 
here, as they do everywhere in the constitution, the several States in 


250 The Constitution, By Whom Adopted and Ordained 


their confederated character; that treason against them, is treason 
against their joint sovereignty, and, of course, as much treason against 
each State, as the act would be against any one of them, in its indi¬ 
vidual and separate character. 1 Calhoun's Works, pp. 149-150. 

He claimed that the States still retained their original un¬ 
limited sovereignty, and as proof of this, he relies upon that 
part of the Constitution which provides for amending it. That 
as the people of the several States have the right to amend or 
change, this is conclusive that the entire sovereign powers re¬ 
side in them. He says: 

By its provisions, Congress may propose amendments, on its own 
authority, by the vote of two-thirds of both houses; or it may be com¬ 
pelled to call a convention to propose them, by two-thirds of the legis¬ 
latures of the several States; but, in either case, they remain, when 
thus made, mere proposals of no validity, until adopted by three- 
fourths of the States, through their respective legislatures; or by con¬ 
ventions, called by them for the purpose. 1 Calhoun's Works, p. 138. 

Mr. Madison, has said this upon the subject: 

Much of the constitutional controversy which has prevailed has 
turned, as often happens, on the different ideas attached to the lan¬ 
guage employed, and would have been obviated by previous definitions 
of its terms. That the people of the United States formed the Con¬ 
stitution, will be denied or affirmed according to the sense in which the 
expression is understood. The main question is, whether they have 
not given to the charter a sanction in a capacity and a mode that shuts 
the door against all such disuniting and nullifying doctrines as those 
lately advanced. 4 Writings of Madison, p. 111. 

By the Hamiltonian School of Statesmen it is claimed that the Con¬ 
stitution was the product of one body politic—the whole mass of the 
people of the United States, giving the Federal Government the large 
powers contained therein and denying certain powers to the States, as 
well as certain others to the Federal Government; and that this body 
politic, the United States, ante-dated the States, and in effect created 
them, etc. The Jeffersonian School holds that the States, prior to the 
adoption of the Constitution, existed as independent sovereigns; that 
they created the Constitution by proposing it to the people of the sev¬ 
eral States, who ratified certain ones to the Federal Government, denied 
others to the States, reserving all others “to the States respectively, or 
to the people.” Tucker's Limitations on The Treaty-Making Power, 83. 

Judge Cooley strongly confirms this view: 

“To ascertain whether any power assumed by the government of the 
United States is rightfully assumed, the Constitution is to be examined 
in order to see whether expressly or by fair implication the power has 
been granted, and if the grant does not appear, the assumption must be 
held unwarranted. To ascertain whether a State rightfully exercises 
a power, we have only to see whether by the Constitution of the United 
States it is conceded to the Union, or by that Constitution or that of 
the State prohibited to be exercised at all. The presumption must be 


The Constitution, By Whom Adopted and Ordained 251 


that the State rightfully does what it assumes to do, until it is made 
to appear how, by constitutional concessions, it has divested itself of 
the power, or by its own Constitution has for the time rendered the ex¬ 
ercise unwarrantable.” Tucker's Limitations on The Treaty-Making 
Power, 85. 

The Convention of 17.87 represented, not the people of the United 
States in mass, as has been absurdly contended by some political 
writers, but the people of the several States, as States —just as in the 
Congress of that period—Delaware, with her sixty-thousand inhabi¬ 
tants, having entire equality with Pennsylvania, which had more than 
four hundred thousand, or Virginia, with her seven hundred and fifty 
thousand. 

The object for which they were appointed was not to organize a new 
Government, but “solely and expressly” to amend the “Federal Consti¬ 
tution” already existing; in other words, “to revise the Articles of 
Confederation,” and to suggest such “alterations” or additional “pro¬ 
visions” as should be deemed necessary to render them “adequate to 
the exigencies of the Union.” Davis on The Rise and Fall of The Con¬ 
federate Government, Vol. I, 93. 

The functions of the delegates to the Convention were, of course, 
only to devise, deliberate, and discuss. No validity could attach to any 
action taken, unless and until it should be afterward ratified by the 
several States. Davis on The Rise and Fall of The Confederate Gov¬ 
ernment, Vol. I, 93, 94. 

Luther Martin, a delegate from Maryland, in an account of 
its proceedings, afterward given to the Legislature of that 
State, classifies these differences as constituting three parties 
in the Convention, which he describes as follows: 

“One party, whose object and wish it was to abolish and annihilate all 
State governments, and to bring forward one General Government over 
this continent of a monarchial nature, under certain restrictions and 
limitations. Those who openly avowed this sentiment were, it is true, 
but few; yet it is equally true that there was a considerable number, 
who did not openly avow it, who were, by myself and many others of 
the Convention, considered as being in reality favorers of that senti¬ 
ment. . 

“The second party was not for the abolition of the State govern¬ 
ments nor for the introduction of a monarchial government under any 
form; but they wished to establish such a system as could give their 
own States undue power and influence in the government over the 
other States. 

“A third party was what I considered truly federal and republican. 
This party was nearly equal in number with the other two, and was 
composed of the delegates from Connecticut, New York, New Jersey, 
Delaware, and in part from Maryland; also of some individuals from 
other representations. This party were for proceeding upon terms of 
federal equality; they were for taking our present federal system as 
the basis of their proceedings, and, as far as experience had shown that 
other powers were necessary to the Federal Government, to give those 


252 


The Constitution, Those Who Made It 


powers. They considered this the object for which they were sent by 
their States, and what their States expected from them.” Davis on 
The Rise and Fall of The Confederate Government, Vol. I, 95. 

It must be conceded that the Constitution was formed by the thir¬ 
teen States and not by the people of the United States at large. The 
delegates were in some cases elected by the people of the different 
States, and in others appointed by their respective legislatures. They 
voted in the Convention by States and not as individuals. The object 
of the ratification by the people of the several States was because it 
was deemed that the legislatures had no power under their respective 
constitutions to delegate or grant away any power vested in them by the 
ratification of the Constitution. These facts are plain to every student 
of the history of the appointment of the delegates to the Federal Con¬ 
vention, the proceedings of that Convention, and the ratification of the 
Constitution by the thirteen States. 

Mr. Madison gives the clearest insight into the question as 
to whether it was framed by the States or the people of the 
United States. He says: 

True it is, that the federal compact was not formed by individuals * 
as the parties—that is, by the people acting as a single community. It 
was formed, nevertheless, by the people acting as separate communities, 
in their sovereign and highest capacity; a capacity in which, if they 
had so willed, they could have made themselves a single community, 
or have reduced their confederate system into an ordinary league or 
alliance; and the authority which could have done the former,-could 
certainly take the middle course, which was taken in establishing the 
existing Constitution. In a word, the constitutional compact being 
formed by an authority perfectly competent, its obligatory and opera¬ 
tive character must be the same as if it had been formed in any other 
mode by an authority not more competent; and while undissolved by 
consent or by force, it must be executed, within the extent of its 
granted powers, according to the forms and provisions prescribed in it, 
without reference to the mode of its formation. In the event of a dis¬ 
solution of the compact, a distinctive effect would be, that the States 
would fall back into their character of single and separate communi¬ 
ties; whereas a dissolution of the social compact on which single com¬ 
munities are founded, would have the effect of restoring or reducing 
individuals to a state of nature. 4 Writings of Madison, pp. 240-241. 

Those Who Made the Constitution 

Mr. Bryce thus speaks of Washington and Hamilton: 

Washington is, indeed, a far more perfect character. Washington 
stands alone and unapproachable, like a snow-peak rising above its 
fellows into the clear air of morning, with a dignity, constancy, and 
purity which have made him the ideal type of civic virtue to succeeding 
generations. No greater benefit could have befallen the republic than 
to have such a type set from the first before the eye and mind of the 
people. But Hamilton, of a virtue not so flawless, touches us more 
nearly, not only by the romance of his early life and his tragic death, 
but by a certain ardour and impulsiveness, and even tenderness of soul, 


The Constitution, Its Friends and Enemies 


253 


joined to a courage equal to that of Washington himself. Equally apt 
for war and for civil government, with a profundity and amplitude of 
view rare in practical soldiers or statesmen, he stands in the front rank 
of a generation never surpassed in history, a generation which includes 
Burke and Fox and Pitt and Grattan, Stein and Hardenberg and 
William von Humboldt, Wellington and Napoleon, Talleyrand, who 
seems to have felt for him something as near affection as that cold 
heart could feel, said, after knowing all the famous men of the time, 
that only Fox and Napoleon were Hamilton’s equals, and that he had 
divined Europe, having never seen it. Bryce's American Common, 
wealth, Vol. I, 6^1. 

It is remarkable that two of the strongest men in the Convention 
were, as nor. being native Americans, far less influenced than most of 
their colleagues by local and State feeling, and therefore threw the 
whole weight of their intellect and influence into the national scale. 
These were Alexander Hamilton, born a West Indian, the son of a 
Scotch father and a French mother, and James Wilson, an immigrant 
from Scotland. The speeches of the latter (a lawyer in Philadelphia, 
and afterwards a justice of the Supreme Federal Court) in the Pennsyl¬ 
vania ratifying Convention, as well as in the great Convention of 1787* 
display an amplitude and profundity of view in matters of constitu¬ 
tional theory which place him in the front rank of the political thinkers 
of his age. Wilson, who was born about 1742 and died in 1792, is one 
of the luminaries of the time to whom, as to the still greater and far 
more brilliant Hamilton, subsequent generations of Americans have 
failed to do full justice. Bryce's American Commonwealth, Vol. I, 
665, note. 

The Friends and Enemies of the Constitution 

Of the effect which parties played in framing the Constitu¬ 
tion Mr. Jefferson said in 1812, among other things: 

Among that section of our citizens called federalists, there are three 
shades of opinion. Distinguishing between the leaders and people who 
compose it, the leaders consider the English constitution as a model 
of perfection, some, with a correction of its vices, others, with all its 
corruptions and abuses. This last was Alexander Hamilton’s opinion, 
which others, as well as myself, have often heard him declare, and that 
a correction of what are called its vices, would render the English an 
impracticable government. This government they wished to have estab¬ 
lished here, and only accepted and held fast, at first, to the present 
constitution, as a stepping-stone to the final establishment of their 
favorite model. This party has therefore always clung to England as 
their prototype, and great auxiliary in promoting and effecting this 
change. 13 Jefferson's Writings, (mem. ed.), p. 209. 

The party called republican is steadily for the support of the present 
constitution. They obtained at its commencement, all the amendments 
to it they desired. These reconciled them to it perfectly, and if they 
have any ulterior view, it is only, perhaps, to popularize it further, by 
shortening the Senatorial term, and devising a process for the respon- 


254 


The Constitution, Its Friends and Enemies 


sibility of judges, more practicable than that of impeachment. They 
esteem the people of England and France equally, and equally detest 
the governing powers of both. 

This I verily believe, after an intimacy of forty years with the public 
councils and characters, is a true statement of the grounds on which 
they are at present divided, and that it is not merely an ambition for 
power. An honest man can feel no pleasure in the exercise of power 
over his fellow citizens. 13 Jefferson's Writings {mem. ed.), pp. 210- 
211 . 

You expected to discover the difference of our party principles in 
General Washington’s valedictory, and my inaugural address. Not at 
all. General Washington did not harbor one principle of federalism. 
He was neither an Angloman, a monarchist, nor a separatist. He sin- 
‘cerely wished the people to have as much self-government as they were 
competent to exercise themselves. The only point on which he and I 
ever differed in opinion was, that I had more confidence than he had 
in the natural integrity and discretion of the people, and in the safety 
and extent to which they might trust themselves with a control over 
their government. He has asservated to me a thousand times his de¬ 
termination that the existing government should have a fair trial, and 
that in support of it he would spend the last drop of his blood. He did 
this- the more repeatedly, because he knew General Hamilton’s political 
bias, and my apprehensions from it. It is a mere calumny, therefore, 
in the monarchists, to associate General Washington with their prin¬ 
ciples. 13 Jefferson's Writings, (mem. ed.), p. 212. Yet Jefferson’s 
enemies say he was a traitor to Washington and the Constitution. 

In writing to Mr. Everett as to his work on America, Madi¬ 
son says: 

One error into which the author has been led will, I am sure, be 
gladly corrected. On page 109 it is said of Washington that he “ap¬ 
pears to have wavered for a moment in making up his mind upon the 
Constitution.” I can testify, from my personal knowledge, that no 
member of the Convention appeared to sign the Instrument with more 
cordiality than he did, nor to be more anxious for its ratification. I 
have, indeed, the most thorough conviction, from the best evidence, 
that he never wavered in the part he took in giving it his sanction 
and support. 3 Writings of Madison, p. 58^. 

The Makers of the Constitution 

At the head of the illustrious men who framed and signed it, men 
who have earned the eternal gratitude of their country, stands the 
name of GEORGE WASHINGTON, “President and Deputy from Vir¬ 
ginia;” a name at the utterance of which envy is dumb, and pride bows 
with involuntary reverence; and piety, with eyes lifted to Heaven, 
breathes forth a prayer of profound gratitude. Story on the Constitu¬ 
tion, Vol. V, p. 620, § 1856. 

The Constitutional Review, in its review of Prof. Farrand’s 
book, The Framing of the Constitution, says: 

Here we see the august Washington, carefully abstaining from par¬ 
ticipation in the debates, even when the convention sat in committee of 


255 


The Constitution, Motives Which Inspired It 

the whole, lest his im m ense influence should overawe the other del¬ 
egates, yet unable to wholly suppress his smiles or frowns as he favored 
or disapproved the proposals brought forward. Here also we have 
pictures of the venerable and philosophic Franklin, casting counsels of 
moderation upon the stormy waters of debate; of Madison, the meth¬ 
odical, learned, and industrious, the scholar in politics, yet more than 
anyone else the father of the Constitution; of the small and tense frame 
of Hamilton, the aristocrat, as he delivered his one great speech in the 
convention; of Luther Martin, able and (as some thought) unscrupu¬ 
lous, inconceivably tedious and prolix, and yet the author of the “su¬ 
preme law of the land” clause; of the brilliant and slightly presump¬ 
tuous youth from South Carolina, Charles Pinckney; of William Pierce 
of Georgia, that most excellent “mixer,” blessed with a sense of humor, 
who placed posterity under an obligation by recording in familiar 
phrases his personal impressions of all his fellow delegates; and of 
those gifted men and solid citizens Mason, King, Ellsworth, Sherman, 
Gerry, Wilson, Randolph and the two Morrises. The Constitutional 
Review , Vol. I, 60-1. 

Motives Which Inspired the Makers of the Constitution 

Mr. Madison thus states some of them. 

The most of us carried into the Convention a profound impression, 
produced by the experienced inadequacy of the old Confederation, and 
by the monitory examples of all similar ones, ancient and modern, as to 
the necessity of binding the States together by a strong Constitution, is 
certain. The necessity of such a Constitution was enforced by the gross 
and disreputable inequalities which had been prominent in the internal 
administrations of most of the States. Nor was the recent and alarm¬ 
ing insurrection, headed by Shays, in Massachusetts, without a very 
sensible effect on the public mind. Such, indeed, was the aspect of 
things, that, in the eyes of all the best friends of liberty, a crisis had 
arrived which was to decide whether the American experiment was to 
be a blessing to the world, or to blast forever the hopes which the 
republican cause had inspired; and what is not to be overlooked, the 
disposition to give to a new system all the vigor consistent with Repub¬ 
lican principles was not a little stimulated by a backwardness in some 
quarters towards a Convention for the purpose, which was ascribed to 
a secret dislike to popular Government, and a hope that delay would 
bring it more into disgrace, and pave the way for a form of Government 
more congenial with monarchical or aristocratical predilections. 3 
Writings of Madison, p. 2 If If. 

For myself, having, from the first moment of maturing a political 
opinion down to the present one, never ceased to be a votary of the 
principle of self-government, I was among those most anxious to rescue 
it from the danger which seemed to threaten it; and with that view, 
was willing to give to a Government resting on that foundation as much 
enei^y as would insure the requisite stability and efficacy. It is pos¬ 
sible, that in some instances this consideration may have been allowed 
a weight greater than subsequent reflection within the Convention, or 
the actual operation of the Government, would sanction. It may be re¬ 
marked, also, that it sometimes happened, that opinions as to a par- 


256 


The Constitution, Its Character and Nature 


ticular modification or a particular power of the Government had a 
conditional reference to others, which, combined therewith, would vary 
the character of the whole. 

But whatever might have been the opinions entertained in forming 
the Constitution, it was the duty of all to support it in its true mean¬ 
ing, as understood Oy the nation at the time of its ratification. No one 
felt this obligation more than I have done; and there are few, perhaps, 
whose ultimate and deliberate opinions on the merits of the Consti¬ 
tution accord in a greater degree with that obligation. 

The departures from the true and fair construction of the instru¬ 
ment have always given me pain, and always experienced my opposi¬ 
tion when called for. 3 Writings of Madison, p. 2^5. 

The Character and Nature of the Constitution 

Mr. Jefferson who took but little part in the making of the 
Constitution, because he was then absent as Minister to France, 
has said of its formation: 

“The example of changing a constitution by assembling the wise 
men of the State, instead of assembling armies, will be worth as much 
to the world as the former examples we had given them. The Con¬ 
stitution too, which was the result of our deliberations, is, undoubtedly, 
the wisest ever yet presented to men.” 3 Works, 12. Miller's Const. 
Note, pp. 59-60. 

Mr. Jefferson thus spoke of it: 

Where a constitution, like ours, wears a mixed aspect of monarchy 
and republicanism, its citizens will naturally divide into two classes 
of sentiment, according as their tone of body or mind, their habits, con¬ 
nections and callings, induce them to wish to strengthen either the 
monarchical or the republican features of the constitution. Some will 
consider it as an elective monarchy, which had better be made heredi¬ 
tary, and therefore endeavor to lead towards that all the forms and 
principles of its administration. Others will view it as an energetic 
republic, turning in all its points on the pivot of free and frequent 
elections. The great body of our native citizens are unquestionably of 
the republican sentiment. Foreign education, and foreign connections 
of interest, have produced some exceptions in every part of the Union, 
north and south. 9 Jefferson's Writings, (mem. ed.), pp. 377-8. 

Much as I abhor war, and view it as the greatest scourge of man¬ 
kind, and anxiously as I wish to keep out of the broils of Europe, I 
would yet go with my brethren into these, rather than separate from 
them. 9 Jefferson's Writings , (mem. ed.), p. 385. 

The following is Mr. Jefferson’s views of our Constitution 
and our government, which in the opinion of the writer are 
ideal: 

I do then, with sincere zeal, wish an inviolable preservation of our 
present federal Constitution, according to the true sense in which it 
was adopted by the States, that in which it was advocated by its friends, 
and not that which its enemies apprehended, who therefore became its 
enemies; and I am opposed to the monarchising its features by the 


The Constitution, Its Character and Nature 


257 


forms of its administration, with a view to conciliate a first transition 
to a President and Senate for life, and from that to an hereditary- 
tenure of these offices, and thus to worm out the elective principle. I 
am for preserving to the States the powers not yielded by them to the 
Union, and to the legislature of the Union its constitutional share in 
the division of powers; and I am not for transferring all the powers of 
the States to the General Government, and all those of that government 
to the executive branch. I am for a government rigorously frugal 
and simple, applying all the possible savings of the public revenue to 
the discharge of the national debt; and not for a multiplication of 
officers and salaries merely to make partisans, and for increasing, by 
every device, the public debt, on the principle of its being a public 
blessing. I am for relying, for internal defence, on our militia solely, 
till actual invasion, and for such a naval force only as may protect 
our coasts and harbors from such depredations as we have experienced; 
and not for a standing army in time of peace, which may overawe the 
public sentiment; nor for a navy, which, by its own expenses and the 
eternal wars in which it will implicate us, will grind us with public 
burthens, and sink us under them. I am for free commerce with all 
nations; political connection with none; and little or no diplomatic 
establishment. £And I am not for linking ourselves by new treaties 
with the quarrels of Europe; entering that field of slaughter to pre¬ 
serve their balance, or joining in the confederacy of kings to war 
against the principles of liberty. I am for freedom of religion, and 
against all manoeuvres to bring about a legal ascendency of one sect 
over another: for freedom of the press, and against all violations of 
the Constitution to silence by force and not by reason the complaints 
or criticisms, just or unjust, of our citizens against the conduct of 
their agents.^And I am for encouraging the progress of science in all 
its branches? and for raising a hue and cry against the sacred name 
of philosophy; for awing the human mind by stories of raw-head and 
bloody bones to a distrust of its own vision, and to repose implicitly 
on that of others; to go backwards instead of forwards to look for 
improvement; to believe that government, religion, morality, and every 
other science were in the highest perfection in ages of the darkest 
ignorance, and that nothing can ever be devised more perfect than 
what was stablished by our forefathers. To these I will add, that I 
was a sincere well-wisher to the success of the French revolution, and 
still wish it may end in the establishment of a free and well-ordered 
republic; but I have not been insensible under the atrocious depreda¬ 
tions they have committed on our commerce.” 10 Jefferson's Writings , 
(mem. ed.), pp. 76-77-78. 

Oh, if the Constitution could have been interpreted as Mr. 
Jefferson interpreted it and could have been preserved as he 
hoped it would, how much better it would have been for us and 
the world! 

If we could only have kept out of the European quarrels as 
he hoped we would, a change of events would have occurred. 
If we could only have followed the advice of the above letter 
of Jefferson and the farewell address of Washington as to no 


258 The Constitution, a Mere Compact Between the States 


entangling alliances with foreign nations, how much better it 
would have been for us as a people, but whether it would have 
been better for the world or not, time can only tell. 

What would Washington and Jefferson have advised had 
they lived in 1914 to 1918, instead of when they did? No one 
can know, and time only can tell whether we chose ill or well 
in the course we pursued. Of course, our leaders believed they 
acted wisely; no unbiased mind can doubt the motive or in¬ 
tentions that controlled the leaders and they have been sup¬ 
ported by the people as never before. 

Is the Constitution a Mere Compact Between the States? 

The doctrine for and against the proposition, and the rea¬ 
sons for holding to the one or the other, is possibly best and 
most forcefully stated by Messrs. Hayne and Webster in 
their great debate on the Foote Resolution, which had nothing 
to do with the subjects discussed, the right of secession, and 
nullification, the tariff and the author of the great Ordinance 
of 1787. Most all that can be said on these subjects is there 
well said. 


Mr. Webster thus states some of his reasons: 

So much, sir, for the argument, even if the premises of the gentle¬ 
man were granted, or could be proved. But, sir, the gentleman has 
failed to maintain his leading proposition. He has not shown, it can 
not be shown, that the Constitution is a compact between State govern¬ 
ments. The Constitution itself, in its very front refutes that idea; it 
declares that it is ordained and established by the people of the United 
States. So far from saying that it is established by the governments of 
the several States, it does not even say that it is established by the 
people of the several States; but it pronounces that it is established by 
the people of the United States, in the aggregate. The gentleman says, 
it must mean no more than the people of the several States, taken col¬ 
lectively, constitute the people of the United States; but it is in this, 
their collective capacity, it is as all the people of the United States, that 
they establish the Constitution. So they declare; the words can not 
be plainer than the words used. 3 Webster’s Works , (1th ed.), p. 346. 


Mr. Webster later probably changed his views on the subject 
of the Constitution being a compact. He never did become a 
convert to the doctrine of nullification or secession, but he did 
affirm that the causes which led to Secession would be a just 
and sufficient cause for revolution. See his speech 1 at Capon 
Springs, Va., where he said: 


x Mr. Webster was much censured for 
this and other similar speeches by 
many of his constituents in Boston 
and other Eastern cities. The Board 
of Aldermen of Boston refused the use 
of Fanuel Hall as a place of reception 


to be given him. The act, however, 
was regretted, and its use was later 
granted and accepted. Curtis on The 
Life of Daniel Webster, Vol. II, pp. 
499 - 500 . 


The Constitution , a Mere Compact Between the States 259 

“If large portions of public bodies, against their duties and their 
oaths, will refuse to execute the Constitution, and do, in fact, prevent 
such execution, no remedy seems to lie by any application to the Su¬ 
preme Court. The case now before the country clearly exemplifies my 
meaning. Suppose the North to have decided majorities in Congress, 
and suppose these majorities persist in refusing to pass laws for 
carrying into effect the clause of the Constitution which declares that 
fugitive slaves shall be restored, it would be evident that no judicial 
process could compel them to do their duty, and what remedy would 
the South have? 

Note.—There is no doubt that some of the northern States, 
and many large public bodies did refuse to obey or execute 
that part of the Constitution which related to slavery. 

“How absurd it' is to suppose that, when different parties enter into 
a compact for certain purposes, either can disregard any one provision, 
and expect, nevertheless, the other to observe the rest! I intend, for 
one, to regard, and maintain, and carry out, to the fullest extent, the 
Constitution of the United States, which I have sworn to support in all 
its parts and all its provisions.” Curtis on The Life of Daniel Webster, 
Vol. II, 518. 

“I have not hesitated to say, and I repeat, that if the Northern 
States refuse, wilfully and deliberately, to carry into effect that part of 
the Constitution which respects the restoration of fugitive slaves, and 
Congress provide no remedy, the South would no longer be bound to 
observe the compact. A bargain can not be broken on one side, and 
still bind the other side. I say to you, gentlemen, in Virginia, as I said 
on the shores of Lake Erie and in the city of Boston, as I may say 
again in that city or elsewhere in the North, that you in the South 
have as much right to receive your fugitive slaves as the North has to 
any of its rights and privileges or navigation and commerce. I desire 
to be understood here among you, and throughout the country, that in 
hopes, thoughts, and feelings, I profess to be an American—altogether 
and nothing but an American—and that I am for the Constitution, and 
the whole Constitution. I am ready to fight and fall for the constitu¬ 
tional rights of Virginia as I am for those of Massachusetts. I pour 
out to you, gentlemen, my whole heart, and I assure you these are my 
sentiments. I would no more see a feather plucked unjustly from the 
honor of Virginia than I would see one so plucked from the honor of 
Massachusetts.” Curtis on The Life of Daniel Webster, Vol. II, 519. 

Mr. Calhoun claimed that the Constitution, so far as the 
States were concerned, was a mere contract, and not a law; 
but that as to the people or citizens of the States, it was a law. 
That the States could violate it as a contract, but not as a law. 
He says: 

But, as solemn and sacred as it is, and as high as the obligations 
may be which it imposes, still it is but a compact and not a Constitu¬ 
tion, regarded in reference to the people of the several States, in their 
sovereign capacity. To use the language of the constitution itself, it 
was ordained as a “constitution for the United States,” not over them; 
and established, not over but “ between the States ratifying it:” and 


260 The Constitution, a Mere Compact Between the States 

hence, a State acting in its sovereign capacity, and in the same manner 
in which it ratified and adopted the constitution, may he guilty of 
violating it as a compact, but can not be guilty of violating it as a law. 
The case is the reverse, as to the action of its citizens, regarding them 
in their individual capacity. To them it is a law, the supreme law 
within its sphere. They may be guilty of violating it as a law, or of 
violating the laws and treaties made in pursuance of, or under its au¬ 
thority, regarded as laws or treaties; but can not be guilty of violating 
it as a compact. The constitution was ordained and established over 
them by their respective States, to whom they owed allegiance; and 
they are under the same obligation to respect and obey its authority, 
within its proper sphere, as they are to respect and obey their respective 
State constitutions; and for the same reason, viz: that the State to 
which they owe allegiance, commanded it in both cases. 1 Calhoun's 
Works, pp. 276-277. 

In 1833 Mr. Calhoun, submitted to the Senate of the United 
States, a resolution which states fully and succinctly the theory 
of government which was held by him and his school. The 
resolution was as follows: 

“Resolved, That the people of the several States composing these 
United States are united as parties to a constitutional compact, to 
which the people of each State acceded as a separate sovereign com¬ 
munity, each binding itself by its own particular ratification; and that 
the union of which the said compact is the bond, is a union between 
the States ratifying the same. 

“Resolved, That the people of the several States thus united by the 
constitutional compact, in forming that instrument, and in creating a 
general government to carry into effect the objects for which they were 
formed, delegated to that government, for that purpose, certain definite 
powers, to be exercised jointly, reserving, at the same time, each State to 
itself, the residuary mass of powers, to be exercised by its own separate 
government; and that whenever the general government assumes the 
exercise of powers not delegated by the compact, its acts are unau¬ 
thorized, and are of no effect; and that the same government is not 
made the final judge of the powers delegated to it, since that would 
make its discretion, and not the Constitution, the measure of its 
powers; but that, as in all other cases of compact among sovereign 
parties, without any common judge, each has an equal right to judge 
for itself, as well of the infraction as of the mode and measure of 
redress. 

“Resolved, That the assertions, that the people of these United 
States, taken collectively as individuals, are now, or ever have been, 
united on the principle of the social compact, and, as such, are now 
formed into one nation or people, or that they have ever been so united 
in any one stage of their political existence; that the people of the 
several States composing the Union have not, as members thereof, re¬ 
tained their sovereignty; that the allegiance of their citizens has been 
transferred to the general government; that they have parted with the 
right of punishing treason through their respective State governments; 
and that they have not the right of judging in the last resort as to the 
extent of the powers reserved, and of consequence of those delegated, 


The Constitution, a Mere Compact Between the States 261 

are not only without foundation in truth, but are contrary to the most 
certain and plain historical facts, and the clearest deductions of rea¬ 
son; and that all exercise of power on the part of the general govern¬ 
ment, or any of its departments, claiming authority from such erro¬ 
neous assumptions, must of necessity he unconstitutional, must tend, 
directly and inevitably, to subvert the sovereignty of the States, to 
destroy the federal character of the Union, and to rear on its ruins a 
consolidated government, without constitutional check or limitation, 
and which must necessarily terminate in the loss of liberty itself.” 3 
Webster's Works (7th ed.), pp. 448-443. 

Mr. Webster in reply to Mr. Calhoun’s speech on the subject 
said: 

Among the feelings which at this moment fill my breast, not the 
least is that of regret at the position in which the gentleman has 
placed himself. Sir, he does himself no justice. The cause which he 
has espoused finds no basis in the Constitution, no succor from public 
sympathy, no cheering from a patriotic community. He has no foot¬ 
hold on which to stand while he might display the powers of his 
acknowledged talents. Everything beneath his feet is hollow and 
treacherous. He is like a strong man struggling in a morass; every 
effort to extricate himself only sinks him deeper and deeper. And I 
fear the resemblance may be carried still farther; I fear that no friend 
can safely come to his relief, that no one can approach near enough to 
hold out a helping hand, without danger of going down himself, also, 
into the bottomless depths of this Serbonian bog. 

The honorable gentleman has declared, that on -the decision of the 
question now in debate may depend the cause of liberty itself. I am 
of the same opinion; but then, Sir, the liberty which I think is staked 
on the contest is not political liberty, in any general and undefined 
character, but our own well-understood and long-enjoyed American 
liberty. 3 Webster's Works (7th ed.), pp. 443, 450. 

Mr. Webster further said: 

Mr. President, if the honorable member will truly state what the 
people did in forming the Constitution, and then state what they must 
do if they would now undo what they then did, he will unavoidably 
state a case of revolution. Let us see if it be not so. He must state, in 
the first place, that the people of the several States adopted and ratified 
this Constitution, or form of government; and, in the next place, he 
must state that they have a right to undo this; that is to say, that 
they have a right to discard the form of government which they have 
adopted and to break up the Constitution which they have ratified. 
Now, Sir, this is neither more nor less than saying that they 
have a right to make a revolution. To reject an established govern¬ 
ment, to break up a political constitution, is revolution. 

I deny that any man can state accurately what was done by the 
people, in establishing the present Constitution, and then state accu¬ 
rately what the people, or any part of them, must now do to. get rid 
of its obligations, without stating an undeniable case of the overthrow 
of government. I admit, of course, that the people may, if they choose, 
overthrow the government. But, then, that is revolution. The doctrine 


262 The Constitution, a Mere Compact Between the States 


now contended for is, that, by nullification or secession, the obligations 
and authority of the government may be set aside or rejected without 
revolution. But that is what I deny; and what I say, is, that no man 
can state the case with historical accuracy, and in constitutional lan¬ 
guage, without showing that the honorable gentleman’s right, as as- 
serted in his conclusion, is a revolutionary right merely; that it does 
not and can not exist under the Constitution, or agreeably to the Con¬ 
stitution, but can come into existence only when the Constitution is 
overthrown. 1 3 Webster's Works, (1th, ed.), p. 1^56. 

Mr. Webster, in his rejoinder to Mr. Hayne, on the 27th of 
January, 1830, said: 

“When the gentleman says the Constitution is a compact between 
the States, he uses language exactly applicable to the old Confederation. 
He speaks as if he were in Congress before 1789. He describes fully 
that old state of things then existing. The Confederation was, in 
strictness, a compact; the States, as States, were parties to it. We 
had no other General Government. But that was found insufficient 
and inadequate to the public exigencies. The people were not satisfied 
with it, and undertook to establish a better. They undertook to form 
a General Government, which should stand on a new basis—not a con¬ 
federacy, not a league, not a compact between the States, but a Con¬ 
stitution.” 

Again, in his discussion with Mr. Calhoun, three years afterward, 
he vehemently reiterates the same denial. Of the Constitution, he 
says: “Does it call itself a compact? Certainly not. It uses the word 
‘compact’ but once, and that when it declares that the States shall 
enter into no compact. Does it call itself a league, a confederacy, a 
subsisting treaty between the States? .Certainly not. There is not a 
particle of such language in all its pages.” Davis on The Rise and 
Fall of The Confederate Government, Vol. I, 135. 

Mr. Webster says: 

“This is the reason, sir, which makes it necessary to abandon the 
use of constitutional language for a new vocabulary, and to substitute, 
in the place of plain, historical facts, a series of assumptions. This is 
the reason why it is necessary to give new names to things; to speak 
of the Constitution, not as a constitution, but as a compact; and of the 
ratifications by the people, not as ratifications, but as acts of accession.” 

In these and similar passages, Mr. Webster virtually concedes that, 
if the Constitution were a compact; if the Union were a confederacy; 
if the States had, as States, severally acceded to it—all which proposi¬ 
tions he denies—then the sovereignty of the States and their right to 
secede from the Union would be deducible. 

Now, it happens that these very terms— “compact,” “confederacy ” 
“accede,” and the like—were the terms in familiar use by the authors 
of the Constitution and their associates with reference to that instru¬ 
ment and its ratification. Davis on The Rise and Fall of The Confed¬ 
erate Government, Vol. I, 137. 


J Mr. Webster probably modified his 
views as to the nature of the Constitu¬ 
tion but never did as to the right of 
secession or nullification, though his 
enemies claimed that he had a change 


of heart as to the right of secession. 
See his own letters and speeches on the 
subject. 2 Curtis’ Life of Webster, 
518, et seq. 


The Constitution, a Mere Compact Between the States 263 


Mr. Gouverneur Morris, one of the most pronounced advocates of a 
strong central government, in the Convention, said: “He came here to 
form a compact for the good of Americans. He was ready to do so 
with all the States. He hoped and believed they would all enter into 
such a compact. If they would not, he would be ready to join with any 
States that would. But, as the compact was to be voluntary, it is in 
vain for the Eastern States to insist on what the Southern States will 
never agree to.” 

Mr. Madison, while inclining to a strong government, said: 

“In the case of a union inclining to a strong Constitution, the 
nature of the pact has always been understood,” etc. 

Mr. Hamilton, in the “Federalist,” repeatedly speaks of the new 
government as a “ confederate republic' 1 ' and a “ confederacy ,” and calls 
the Constitution a “compact.” (See especially Nos. IX and LXXXV of 
the Federalist.) 

General Washington—who was not only the first President under 
the new Constitution, but who had presided over the Convention that 
drew it up—in letters written soon after the adjournment of that body 
to friends in various States, referred to the Constitution as a compact 
or treaty, and repeatedly uses the terms “accede” and “accession,” and 
once the term “secession.” 

He asks what the opponents of the Constitution in Virginia would 
do, “if nine other States should accede to the Constitution.” 

Luther Martin, of Maryland, informs us that, in a committee of the 
General Convention of 1787, protesting against the proposed violation 
of the principles of the “perpetual union” already formed under the 
Articles of Confederation, he made use of such language as this: 

“Will you tell us we ought to trust you because you now enter into 
a solemn compact with us? This you have done before, and now treat 
with the utmost contempt. Will you now make an appeal to the Su¬ 
preme Being, and call of Him to guarantee you observance of this 
compact? The same you have formerly done for your observance of 
the Articles of Confederation, which you are now violating in the 
most wanton manner.” Davis on The Rise and Fall of The Confed¬ 
erate Government, Vol. I, 137-8. 

Mr. Madison in a letter to Mr. Webster, 1 thus explains the 
character and nature of the compact: 

The only distinctive effect between the two modes of forming a 
Constitution by the authority of the people, is, that if formed by them 
as embodied into separate communities, as in the case of the Consti¬ 
tution of the United States, a dissolution of the Constitution compact 
would replace them in the condition of separate communities, that 
being the condition in which they entered into the compact; whereas, 
if formed by the people as one community, acting as such by a numer¬ 
ical majority, a dissolution of the compact would reduce them to a 
state or nature, as so many individual persons. But while the consti¬ 
tutional compact remains undissolved, it must be executed according to 

1 Mr. Webster often declared that being a compact. Messrs. Jefferson, 
Mr. Madison’s writings converted him Madison and Webster seemed to belong 
as to the tariff question, and it may be to a mutual admiration society, though 
that the same writings converted him in part to different political parties, 
as to the question of the Constitution 


264 American and British Constitutions, Differences Between 


the forms and provisions specified in the compact. It must not be for¬ 
gotten that compact, express or implied, is the vital principle of free 
governments as contradistinguished from governments not free; and 
that a revolt against this principle leaves no choice but between an¬ 
archy and despotism. 4 Writings of Madison , p. 294. 

Character and Nature of Federal Constitution. 

The Constitution of the United States is not a compact, league, or 
treaty between the several States of the Union, but an organic, funda¬ 
mental law, ordained and adopted by the people of the United States, 
establishing a national federal government. 1 Black on Constitutional 
Law, 30. 

Whether the Constitution, as it has divided the powers of Govern¬ 
ment between the States in their separate and in their united capacities, 
tends to an oppressive aggrandizement of the General Government, 2 or 
to an anarchial independence of the State Governments, is a problem 
which time alone can absolutely determine. It is much to be wished 
that the division as it exists, or may be made with the regular sanction 
of the people, may effectually guard against both extremes; for it can 
not be doubted that an accumulation of all power in the General Gov¬ 
ernment would as naturally lead to a dangerous accumulation in the 
Executive hands, as that the resumption of all power by the several 
States would end in the calamities incident in lessening the security 
for sound principles of administration within each of them. 

There have been epochs when the General Government was evidently 
drawing a disproportion of power into its vortex. There have been 
others, when States threatened to do the same. At the present moment, 
it would seem that both are aiming at encroachments, each condition 
and temper of the community, the General Government can not long 
succeed in encroachments contravening the will of a majority of the 
States and of the people. 3 Writings of Madison, p. 246. 


Differences Between British and American Constitutions. 


The one is unwritten, the other is written; the one is change¬ 
able, the other unchangeable, except as the people themselves 
may change it in the mode prescribed by the Constitution itself. 
The government itself may change the one at its pleasure, while 
the people, the body politic alone can change the other in the 
manner prescribed. Strictly speaking, Great Britain has no 
Constitution in the sense the term is used in America. Mr. 
Dicey and Mr. Bryce, two English writers, well state the differ¬ 
ences between the two. 


1 This is probably the modern view 
of the majority of text-writers and 
constitutional lawyers, but it was not 
always so, and probably not the views 
of any of the men who helped to make 
it or participated in its ratification. 

2 The tendency for the last half cen¬ 
tury has been for a strong central gov¬ 
ernment ; and for weak State govern¬ 


ments. The tendency is not only man¬ 
ifested by acts of Congress and the 
executive departments to usurp and 
exercise powers reserved to the States, 
but by the States and the people them¬ 
selves, in amending the Constitution, 
and in nearly every instance, it was 
to take powers and rights from the 
States and the people, and confer them 
upon the central government. 


American and British Constitutions, Differences Between 265 
Mr. Bryce thus compares ours with his: 

In England and many other modern States there is no difference in 
authority by the legislature; all can be changed by the legislature. 
What are called in England constitutional statutes, such as Magna 
Charta, the Bill of Rights, the Act of Settlement, the Acts of Union with 
Scotland and Ireland, are merely ordinary laws, which could be re- 1 
pealed by Parliament at any moment in exactly the same way as it can 
repeal a highway act or lower the duty on tobacco. The habit has 
grown up of talking of the British Constitution as if it were a fixed 
and definite thing. But there is in England no such thing as a Con¬ 
stitution apart from the rest of the law; there is merely a mass of law, 
consisting partly of statutes and partly of decided cases and accepted 
usages, in conformity with which the government of the country is 
carried on from day to day, but which is being constantly modified by 
fresh statutes and cases. The same thing existed in ancient Rome, and 
everywhere in Europe a century ago. It is, so to speak, the “natural,” 
and used to be the normal, condition of things in all countries, free or 
despotic. 

The condition of America is wholly different. There the name Con¬ 
stitution designates a particular instrument adopted in 1789, amended 
in some points since, which is the foundation of the national govern¬ 
ment. This Constitution was ratified and made binding, not by Con¬ 
gress, but by the people acting through conventions assembled in the 
thirteen States which then composed the Confederation. It created 
legislature of two houses; but that legislature, which we call Congress, 
has no power to alter it in the smallest particular. That which the 
people have enacted, the people only will alter or repeal. 

Here therefore we observe two capital differences between England 
and the United States. The former has left the outlines as well as the 
details of her system of government to be gathered from a multitude 
of statutes and cases. The latter has drawn them out in one compre¬ 
hensive fundamental enactment. The former has placed these so-called 
constitutional laws at the mercy of her legislature, which can abolish 
when it pleases any institution of the country, the Crown, the House 
of Lords, the Established Church, the House of Commons, Parliament 
itself. The latter has placed her Constitution altogether out of the 
reach of Congress, providing a method of amendment whose difficulty 
is shown by the fact that it has been very sparingly used. 

In England Parliament is omnipotent. In America Congress is 
doubly restricted. Lt can make laws for only certain purposes specified 
in the Constitution, and in legislating for these purposes it must not 
transgress any provision of the Constitution itself. The stream can 
not rise above its source. Bryce on American Commonwealth, Vol. I, 
237-8. 

In America the supreme law-making power resides in the people. 
Whatever they enact binds all courts whatsoever. All other law-mak¬ 
ing bodies are subordinate, and the enactments of such bodies must 
conform to the supreme law, else they will perish at its touch, as a 
fishing smack goes down before an ocean steamer. And these subordi¬ 
nate enactments, if at variance with the supreme law, are invalid from 
the first, although their invalidity may remain for years unnoticed or 
unproved. It can be proved only by the decision of a court in a case 


266 American and British Constitutions, Differences Between 

which raises the point for determination. The phenomenon can not 
arise in a country whose legislature is omnipotent, but naturally arises 
wherever we find a legislature limited by the superior authority, such 
as a constitution which the legislature can not alter. 

In England the judges interpret Acts of Parliament exactly as 
American judges interpret statutes coming before them. If they find 
an Act conflicting with a decided case, they prefer the Act to the case, 
as being of higher authority. As between two conflicting Acts, they 
prefer the latter.” Bryce's American Commonwealth, Vol. I, 2^5. 

The march of democracy in England has disposed English writers 
and politicians of the very school which thirty or twenty years ago 
pointed to America as a terrible example, now to discover that her 
republic possesses elements of stability wanting in the monarchy of 
the mother country. They lament that England should have no su¬ 
preme court. Some have even suggested that England could create 
one. They do not seem to perceive that the dangers they discern arise 
not from the want of a court hut from the omnipotence of the British 
Parliament. They ask for a court to guard the British Constitution, 
forgetting that Britain has no constitution, in the American sense, and 
never had one, except for a short space under Oliver Cromwell. The 
strongest court that might he set up in England could effect nothing 
so long as Parliament retains its power to change every part of the law, 
including all the rules and doctrines that are called constitutional. If 
Parliament were to lose that power there would he no need to create 
a supreme court, because the existing judges of the land would neces¬ 
sarily discharge the very functions which the American judges now 
discharge. Bryce's American Commonwealth, Vol . I, 2^9. 

James Wilson of Pennsylvania was one of the deepest thinkers and 
most exact reasoners among the members of the Convention of 1787. 
Speaking of the State constitutions, he remarked in the Pennsylvania 
Convention of 1788: “Perhaps some politician who has not considered 
with sufficient accuracy our political system would observe that in our 
governments the supereme power was vested in the constitutions. This 
opinion approaches the truth, but does not reach it. The truth is that 
in our governments the supreme, absolute, and uncontrollable power 
remains in the people. As our constitutions are superior to our legis¬ 
latures, so the people are superior to our constitutions.” Elliot’s De¬ 
bates, ii. 432. Bryce's American Commonwealth, Vol. I, 250, note. 

The Constitution of England is contained in hundreds of volumes of 
statutes and reported cases; the Constitution of the United States (in¬ 
cluding the amendments) may be read through aloud in twenty-three 
minutes. It is about half as long as St. Paul’s first Epistle to the 
Corinthians, and only one fortieth part as long as the Irish Land Act of 
1881. History knows few instructions which in so few words lay down 
equally momentous rules on a vast range of matters of the highest 
importance and complexity. Bryce's American Commonwealth, Vol. I, 
363. 

It resembles theological writings in this, that both, while taken to 
be immutable guides, have to be adapted to a constantly changing 
world, the one to political conditions which vary from year to year 
and never return to their former state, the other to new phases of 


American Constitution, Compared With Others 267 

thought and emotion, new beliefs in the realms of physical and ethical 
physiosophy. There must, therefore, be a development in constitutional 
formulas, just as there is in theological. It will come, it can not be 
averted, for it comes in virtue of a law of nature; all that men can do 
is to shut their eyes to it, and conceal the reality of change under the 
continued use of time-honored phrases, trying to persuade themselves 
that these phrases mean the same thing to their minds to-day as they 
meant generations or centuries ago. As a great and living theologian 
says, “In a higher world it is otherwise; but here below to live is to 
change, and to be perfect is to have changed often.” 

The Constitution of the United States is so concise and so general 
in its terms, that even had America been as slowly moving a country 
as China, many questions must have arisen on the interpretation of 
the fundamental law which would have modified its aspect. But 
America has been the most swiftly expanding of all countries. Hence 
the question that has presented itself has often related matters which 
the framers of the Constitution could not have contemplated. Bryce’s 
American Commonwealth, Vol. I, 36Jy. 

The United States Constitution Compared With Others. 

Mr. Justice Miller thus compares it: 

This instrument comes nearer than any of political origin to 
Rousseau’s idea of a society founded on social contract. In its forma¬ 
tion, States and individuals, in the possession of equal rights—the 
rights of human nature common to all—met together and deliberately 
agreed to give up certain of those rights to government for the better 
security of others; and that there might be no mistake about this 
agreement it was reduced to writing, with all the solemnities which 
give sanction to the pledges of mankind. 

Other nations speak of their constitutions, which are the growth of 
centuries of government, and the maxims of experience, and the tradi¬ 
tions of ages. Many of them deserve the veneration which they re¬ 
ceive; but a constitution, in the American sense of the word, as accepted 
in all the States of North and South America, means an instrument in 
writing, defining the powers of government, and distributing those 
powers among different bodies of magistrates for their more judicious 
exercise. The Constitution of the United States not only did this as 
regards a national government, but it established a federation of many 
States by the same instrument, in which the usual fatal defects in such 
unions have been corrected with such felicity, that during the hun¬ 
dred years of its existence the union of the States has grown stronger, 
and has received within that Union other States exceeding in number 
those of the original federation. 

It is not only the first important written constitution found in his¬ 
tory, but it is the first one which contained the principles necessary to 
the successful confederation of numerous powerful States. I do not 
forget, nor do I mean to disparage, our sister, the federal republic of 
Switzerland: but her continuance as an independent power in Europe 
is so largely due to her compact territory, her inaccessible mountains, 
her knowledge of the necessity of union to safety, and the policy of her 
powerful neighbors which demands of each other the recognition of 
her rights, that she hardly forms an exception. Miller’s Const, pp. 26-27. 


268 


The Constitution, Compromises of 


Mr. Bancroft thus speaks of it. “The members were awestruck at 
the result of their counsels; the Constitution was a nobler work than 
any one of them believed possible to devise.” And he prefaces the vol¬ 
ume of his invaluable history of the formation of the Constitution with 
a sentiment of Mr. Gladstone, the greatest living statesman of England, 
who said: “As the British constitution is the most subtle organism 
which has proceeded from progressive history, so the American Con¬ 
stitution is the most wonderful work ever struck off at a given time by 
the brain and purpose of man.” Miller's Const, pp. 31-32. 

Compromises of the Constitution. 

Mr. Madison in writing to Mr. Van Buren as to his speech 
on the Foote Resolution, says: 

You will not, I am sure, take it amiss, if I here point to an error of 
fact in your “observations on Mr. Foote’s amendment.” It struck me 
when first reading them, but escaped my attention when thanking you 
for the copy with which you favored me. The threatening contest in 
the Convention of 1787 did not, as you supposed, turn on the degree of 
power to be granted to the Federal Government, but on the rule by 
which the States should be represented and vote in the Government; 
the smaller States insisting on the rule of equality in all respects; the 
larger, on the rule of proportion to inhabitants; and the compromise 
was that which established an equality in the Senate and an inequality 
in the House of Representatives. 

The contests and compromises turning on the grants of power, 
though very important in some instances, were knots of a less “Gor¬ 
dian” character. 3 Writings of Madison, p. 63Jf. 

Compromises are the foundation of the Federal Constitution. The 
members of the Convention were too experienced in public life to sac¬ 
rifice the public welfare for a syllogism. They cared nothing for a 
name when the thing they wish could be gained in substance under 
another term. They were too wise to reject a part when they could 
not obtain the whole. Their sagacity was excelled only by their 
patriotism. 

After the struggle between those who wish a new national con¬ 
stitution and those who were willing only to accept an amendment of 
the Articles of Confederation had ended in the defeat of the latter, the 
word “national” was stricken from the paper. Provided that the form 
was national, they were Satisfied that it might be termed federal, even 
though that name was susceptible of two inconsistent interpretations. 
The names of President and Congress were continued, because used 
under the Confederation, although the House of Representatives, at 
least, had no resemblance to a congress of ambassadors, and the new 
executive did not preside. These, however, were in the nature of con¬ 
cessions to popular prejudices, made voluntarily. Between the members 
of the Convention were constant differences which more than once 
threatened a disruption, and were only harmonized by reluctant com¬ 
promise. Foster on the Constitution, Vol. I, pp. 41-J/.2. 

As a result of their labors they established a federal republic with a 
presidential form of government. They created a strong and stable 
nation with local self-government secured to the different States, who 


The Constitution, Construction of 


269 


were restrained from creating domestic discord by unjust discrimina¬ 
tion in favor of their own citizens. The instrument that they framed 
has withstood the shock of the invasion of a foreign army, which cap¬ 
tured and burned the capital, and of a civil war which divided the whole 
country for five years into two hostile camps, and left the conquered 
section so disordered that for ten years more its local governments 
were upheld by the national sword. During all this time private prop¬ 
erty has remained secure, and civil liberty undisturbed except for a 
brief interval amidst the embers of rebellion. Despite the strain 
caused by the immigration of a vast foreign population of servile 
races, debased by generations of tyranny, by custom as well as inheri¬ 
tance unfitted to exercise the rights of citizenship, the sovereignty of 
the people has remained undiscredited and unimpaired, as a beacon 
light for the friends of popular government throughout the world. In 
the struggle between the supporters of civilization against the hordes 
of barbarians within their ranks, which is now in progress throughout 
Europe as well as America, property has more safety here than in any 
other country. The spectacle of a people submitting public controver. 
sies to the same mode of settlement as private lawsuits and acquiescing 
in the decisions, has set an example which foreign nations are about 
to imitate, not only in internal discords, but in those which are inter¬ 
national. Foster on the Constitution, Vol. 1. p. 1^5. 

Construction of the Constitution. 

Mr. Justice Miller says: 

All loose methods of construing authority are dangerous, as well as 
all such as are too limited to serve the purposes for which they were 
intended. The Constitution must be looked at in the light of the ends 
it was designed to accomplish, having in view the evils it was intended 
to remedy and the benefits it was to exert. We must examine it in 
the light of the fact that we were a dissolving people,, when it was de¬ 
signed anew to bind together in a relation which should continue for¬ 
ever; that the Confederation was rapidly falling to pieces for want of 
power to protect itself; and that one of the main purposes of this in¬ 
strument was to give to the Central Government that power. It must 
not be forgotten that the Confederacy, or the government that existed 
under the Articles of Confederation, could only request the States to 
do a great many things necessary in order to maintain and carry on 
the Federal Government successfully, and that it was desirable to give 
the new one the power of operating directly upon the people without 
going through the instrumentality of the States. Miller's Const, pp. 
100 , 101 . 

Another canon of construction which must not be overlooked has 
reference to the fundamental nature of the novel government which 
was erected, very much in the nature of an exepriment, by the Colonies 
when they severed the ties which bound them to England. The Fed¬ 
eral Government which they founded is one of conceded or granted 
powers. The State governments are governments authorized to exer¬ 
cise all the powers not prohibited by the Federal Government or by the 
Constitution of the United States. There is a corresponding difference 


270 


The Constitution, Construction of 


in construction, therefore, and this difference pervades the Federal and 
State Constitutions throughout the entire catalogue of their powers and 
the limitations thereon. 

The powers not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States respective¬ 
ly, or to the people. Amendment X. Miller's Const, pp. 102, 103 and 
note. 

The theory of our governments, State and National, is opposed to the 
deposit of unlimited power anywhere. The executive, the legislative, 
and the judicial branches of these governments are all of limited and 
defined powers. Loan Association v. Topeka, 20 Wall. 655, 663. 

“The Executive, in our governments, is not the sole, it is scarcely 
the principal, object of my jealousy. The tyranny of the Legislature is 
the most formidable dread at present, and will be for many years.” 
Letters of Jefferson to Madison, March 15, 1789; Jefferson’s Works, vol. 
3, p. 5. Miller's Const, note on pp. 104-5. 

It is a maxim of our municipal law, and, I believe, of universal law, 
that he who permits the end, permits of course the means, without 
which the end can not be effected. 12 Jefferson's Writings, (Mem. ed.), 

p. 18. 

From the very beginning of the Government there have been two 
theories for the construction of the Constitution. The thorough-going 
Federalist on the one hand, insists that it must be construed with refer¬ 
ence to the circumstances which made it necessary, and with a just 
conception of the objects which its framers desired to accomplish by it. 
Hence he contends that the delegated powers are to be construed lib¬ 
erally, and that implied powers are to be assumed when necssary to 
fully carry delegated powers into effect. On the other hand, the strict 
States’ rights man plants himself upon the Tenth Amendment, as the 
people’s contemporaneous construction, and contends that the National 
Government is a government with delegated powers only, and that the 
Instrument of delegation should be construed strictly. Miller's Const, 
p. 117. 

Prior to the adoption of the Constitution, there being no Federal 
judiciary (with the exception of the Prize Courts), Congress itself set 
the limit to its own powers by its executive and legislative acts. Mil¬ 
ler's Const, pp. 118, 119. 

The Federalist is undoubtedly the primer and great text-book as 
for the construction of the Constitution. It was written by Jay, Hamil¬ 
ton and Madison, about the time the Constitution was being ratified by 
the States, for the purpose of explaining its meaning and provisions 
to the people. 

Mr. Jefferson proposed, that, with the Declaration of Inde¬ 
pendence, the Valedictory of General Washington, and the 
Virginia and Kentucky Resolutions and Reports of 1798-99, 
and the Federalist should be text-books in the University. He 
describes the last as “being an authority to which appeal is 
habitually made by all, and rarely declined or denied by any, 
as evidence of the general opinion of those who framed and 


The Constitution, Construction of 


27 1 


of those who accepted the Constitution of the United States, 
on questions as to its general meaning.” See in vol. ii, p. 382. 
He speaks of the Federalist as being, in his opinion, the best 
commentary on the principles of Government that ever was 
written. In some parts, it is discoverable that the author 
meant only to say what may be best said in defence of opinions 
in which he did not concur. But, in general, it establishes 
firmly the plan of Government. He says: “I confess, it has 
rectified me on several points. As to the Bill of Bights, how¬ 
ever, I think it should still be added.” This was materially 
affected by the amendments to the Constitution. 

Mr. Madison in 1819, wrote Judge Roane relative to the con¬ 
struction placed on the Constitution by the Court in the case 
of McCulloch v. Md., in which he says: 

It appears to me, as it does to you, that the occasion did not call for 
the general and abstract doctrine interwoven with the decision of the 
particular case. I have always supposed that the meaning of a law, 
and, for a like reason, of a constitution, so far as it depends on judicial 
interpretation, was to result from a course of particular decisions, and 
not those from a previous and abstract comment on the subject. The 
example in this instance tends to reverse the rule, and to forego the 
illustration to be derived from a series of cases actually occurring for 
adjudication. 

I could have wished, also, that the judges had delivered their opin¬ 
ions seriatim. The case was of such magnitude, in the scope given to 
it, as to call, if any case could do so, for the views of the subject 
separately taken by them. This might either, by the harmony of their 
reasoning, have produced a greater conviction in the public mind; or, 
by its discordance, have impaired the force of the precedent, now osten¬ 
sibly supported by a unanimous and perfect concurrence in every argu¬ 
ment and dictum in the judgment pronounced. 

But what is of most importance is the high sanction given to a lati¬ 
tude in expounding the Constitution, which seems to break down the 
landmarks intended by a specification of the powers of Congress, and 
to substitute, for a definite connection between means and ends, a legis¬ 
lative discretion as to the former, to which no practical limit can be 
assigned. 3 Writings of Madison, p. 143. 

It could not but happen, and was foreseen at the birth of the Con¬ 
stitution, that difficulties and differences of opinion might occasionally 
arise in expounding terms and phrases necessarily used in such a 
character; more especially those which divide legislation between the 
general and local governments; and that it might require a regular 
course of practice to liquidate and settle the meaning of some of them. 
But it was anticipated, I believe, by few, if any, of the friends of the 
Constitution, that a rule of construction would be introduced as broad 
and pliant as what has occurred. And those who recollect, and, still 
more, those who shared in what passed in the State conventions, 
through which the people ratified the Constitution, with respect' to the 
extent of the powers vested in Congress, can not easily be persuaded 


272 


The Constitution, Construction of 


that the avowal of such a rule would not have prevented its ratification. 
It has been the misfortune, if not the reproach, of other nations, that 
their governments have not been freely and deliberately established by 
themselves. It is the boast of ours that such has been its source, and 
that it can be altered by the same authority only which established it. 
It is a further boast, that a regular mode of making proper alterations 
has been providently inserted in the Constitution itself. It is anxiously 
to be wished, therefore, that no innovations may take place in other 
modes, one of which would be a constructive assumption of powers 
never meant to be granted. If the powers be deficient, the legitimate 
source of additional ones is always open, and ought to be resorted to. 
3 Writings of Madison , p. 145. 

Much of the error in expounding the Constitution has its origin in 
the use made of the species of sovereignty implied in the nature of gov¬ 
ernment. The specified powers vested in Congress, it is said, are sov¬ 
ereign powers; and that, as such, they carry with them an unlimited 
discretion as to the means of executing them. It may surely be re¬ 
marked, that a limited government may be limited in its sovereignty, 
as well with respect to the means as to the objects of its powers; and 
that to give an extent to the former superseding the limits to the latter 
is, in effect, to convert a limited into an unlimited government. There 
is certainly a reasonable medium between expounding the Constitution 
with the strictness of a penal law or other ordinary statute, and ex¬ 
pounding it with a laxity which may vary its essential character, and 
encroach on the local sovereignties with which it was meant to be re¬ 
concilable. 

The very existence of these local sovereignties is a control on the 
pleas for a constructive amplification of the powers of the General Gov¬ 
ernment. 3 Writings of Madison, p. 146. 

In 1820 Mr. Madison, wrote Judge Roane as follows, as to 
the recent constructions of the Constitution: 

It is to be regretted that the court is so much in the practice of 
mingling with their judgments pronounced, comments and reasonings 
of a scope beyond them; and that there is often an apparent disposition 
to amplify the authorities of the Union at the expense of those of the 
States. It is of great importance, as well as of indispensable obligation, 
that the constitutional boundary between them should be impartially 
maintained. Every deviation from it in practice detracts from the 
superiority of a chartered over a traditional Government, and mars the 
experiment which is to determine the interesting problem, whether the 
organization of the political system of the United States establishes a 
just equilibrium or tends to a preponderance of the national or the local 
powers, and, in the latter case, whether of the national or of the local. 

A candid review of the vicissitudes which have marked the progress 
of the General Government does not preclude doubts as to the ultimate 
and fixed character of a political establishment, distinguished by so 
novel and complex a mechanism. On some occasions, the advantage 
taken of favorable circumstances gave an impetus and direction to it, 
which seemed to threaten subversive encroachments on the rights and 
authorities of the States. At a certain period we witnessed a spirit of 
usurpation by some of these on the necessary and legitimate functions 


The Constitution, Construction of 


273 


of the former. At the present date, theoretic innovations, at least, are 
putting new weights into the scale of Federal sovereignty, which make 
it highly proper to bring them to the bar of the Constitution. 3 Writ¬ 
ings of Madison, pp. 217-218. 

Such is the plastic faculty of legislation, that, notwithstanding the 
firm tenure which judges have on their offices, they can, by various 
regulations, be kept or reduced within the paths of duty; more especial¬ 
ly with the aid of their amenability to the legislative tribunal in the 
form of impeachment. It is not probable that the Supreme Court would 
long be indulged in a career of usurpation opposed to the decided opin¬ 
ions and policy of the legislature. 

Nor do I think that Congress, even seconded by the Judicial power, 
can, without some change in the character of the nation, succeed in 
durable violations of the rights and authorities of the States. The 
responsibility of one branch to the people, and of the other branch to 
the legislatures of the States, seem to be, in the present stage, at least, 
of our political history, an adequate barrier. In the case of the alien 
and sedition laws, which violated the general sense as well as the rights 
of the States, the usurping experiment was crushed at once, notwith¬ 
standing the co-operation of the Federal judges with the Federal laws. 

But what is to control Congress when backed, and even pushed on, 
by a majority of their constituents, as was the case in the late contest 
relative to Missouri, and as may again happen in the constructive pow. 
er relating to roads and canals? Nothing within the pale of the Con¬ 
stitution, but sound arguments and conciliatory expostulations ad¬ 
dressed both to Congress and to their constituents. 3 Writings of Madi¬ 
son, p. 219. 

In expounding the Constitution, the court seems not sensible that 
the intention of the parties to it ought to be kept in view, and that, as 
far as the language of the instrument will permit, this intention ought 
to be traced in the contemporaneous expositions. But is the court as 
prompt and as careful in citing and following this evidence when 
against the Federal authority as when against that of the States? (See 
the partial reference of the court to the “Federalist.”) 3 Writings of 
Madison, p. 220. 

On the question relating to involuntary submissions of the States to 
the tribunal of the Supreme Court, the court seems not to have ad¬ 
verted at all to the expository language when the Constitution was 
adopted, nor to that of the eleventh amendment, which may as well 
import that it was declaratory as that it was restrictive of the mean¬ 
ing of the original text. It seems to be a strange reasoning, also, that 
would imply that a State, in controversies with its own citizens, might 
have less of sovereignty than in controversies with foreign individuals, 
by which the national relations might be affected. Nor is it less to be 
wondered at that it should have appeared to the court that the dignity 
of a State was not more compromitted by being made a party against 
a private person than against a co-ordinate party. 

The Judicial power of the United States over cases arising under 
the Constitution must be admitted to be a vital part of the system. But 
that there are limitations and exceptions to its efficient character, is 
among the admissions of the court itself. The eleventh amendment in¬ 
troduced exceptions, if there were none before. A liberal and steady 


274 


The Constitution, Construction of 


course of practice can alone reconcile the several provisions of the Con¬ 
stitution literally at variance with each other, of which there is an 
example in the treaty power and the legislative power on subjects, to 
which both are extended by the words of the Constitution. It is par¬ 
ticularly incumbent, in taking cognizance of cases arising under the 
Constitution, and in which the laws and rights of the States may be in¬ 
volved, to let the proceedings touch individuals only. Prudence enjoins 
this, if there were no other motive, in consideration of the impractica¬ 
bility of applying coercion to States. 3 Writings of Madison, pp. 
221 - 222 . 

The Gordian knot of the Constitution seems to lie in the problem of 
collision between the Federal and State powers, especially as eventually 
exercised by their respective tribunals. If the knot can not be untied 
by the text of the Constitution, it ought not, certainly, to be cut by any 
political Alexander. 

I have always thought that a construction of the instrument ought 
to be favored as far as the text would warrant, which would obviate 
the dilemna of a judicial recounter or a mutual paralysis; and that 
on the abstract question, whether the Federal or the State decisions 
ought to prevail, the sounder policy would yield to the claims of the 
former. 

Our governmental system is established by a compact, not between 
the Government of the United States and the State governments, but 
between the States as sovereign communities, stipulating each with the 
other a surrender of certain portions of their respective authorities to 
be exercised by a common government, and a reservation, for their own 
exercise, of all their other ■ authorities. 3 Writings of Madison, pp. 
222-223. 

Mr. Madison in writing to a friend relative to his private 
judgment as to the proceedings in the Constitutional Conven¬ 
tion, as a key to the Construction of the Constitution among 
other things says: 

As a guide in expounding and applying the provisions of the Con¬ 
stitution, the debates and incidental decisions of the Convention can 
have no authoritative character. However desirable it be that they 
should be preserved as a gratification to the laudable curiosity felt by 
every people to trace the origin and progress of their political institu¬ 
tions, and as a source, perhaps, of some lights on the science of Govern¬ 
ment, the legitimate meaning of the Instrument must be derived from 
the text itself; or if a key is to be sought elsewhere, it must be, not in 
the opinions or intentions of the body which planned and proposed the 
Constitution, but in the sense attached to it by the people in their re¬ 
spective State Conventions, where it received all the authority which 
it possesses. 3 Writings of Madison, p. 228. 

The argument for the consequences which may attend upon the in¬ 
terpretation of a constitutional provision is not always the best argu¬ 
ment, but is one which may sometimes be considered. As was said by 
this court in Maxwell v. Dow, 176 U. S. 590: “The argument, we ad¬ 
mit, is not always the most conclusive which is drawn from the conse¬ 
quences urged against the adoption of a particular construction of an 


The Constitution, Construction of 


275 


instrument. But when, as in the case before us, these consequences 
are so serious, so far reaching and pervading, so great a departure from 
the structure and spirit of our institutions; when the effect is to fetter 
and degrade the State governments by subjecting them to the control 
of Congress in the exercise of powers heretofore universally conceded 
to them of the most ordinary and fundamental character; when, in 
fact, it radically changes the whole theory of the relations of the State 
and Federal government to each other and of both these governments 
to the people, the argument has a force that is irresistible in the ab¬ 
sence of language which expresses such a purpose too clearly to admit 
of doubt. We are convinced that no such results were intended by the 
Congress which proposed these amendments, nor by the legislatures of 
the States which ratified them.” 182 U. S. Rep. pp. 87-88. 

Acquiescence in Construction of the Constitution. 

A construction of the Constitutional practiced upon or acknowledged 
for a period of nearly forty years, has received a national sanction not 
to be reversed but by an evidence at least equivalent to the national 
will. If every new Congress were to disregard a meaning of the in¬ 
strument uniformly sustained by their predecessors for such a period, 
there would be less stability in that fundamental law than is required 
for the public good in the ordinary exposition of law. And the case 
of the Chancellor’s foot, as a substitute for an established measure, 
would illustrate the greater as well as the lesser evil of uncertainty 
and mutability. 

In expounding the Constitution, it is as essential as it is obvious 
that the distinction should be kept in view between the usurpation and 
the abuse of a power. That a tariff for the encouragement of manu¬ 
factures may be abused by its excess, by its partiality, or by a noxious 
selection of its objects, is certain. But so may the exercise of every 
constitutional power; more especially that of imposing indirect taxes, 
though limited to the object of revenue. 3 Writings of Madison , p. 573. 

It is known that Mr. Madison once denied the power of Con¬ 
gress to establish a national bank, but he yielded his opinion to 
a different construction placed on the Constitution, by the 
States, the people and the Nation. He thus writes to General 
LaFayette on the subject: 

As I have been charged with inconsistency, in not putting a veto on 
the last act of Congress establishing a Bank, a power to do which was 
denied in the Report, a word of explanation may not be improper. My 
construction of the Constitution on this point is not changed; but I re¬ 
garded the reiterated sanctions given to the power by the exercise of it 
through a long period of time, in every variety of form, and in some 
form or other under every administration preceding mine, with the 
general concurrence of the State authorities, and acquiescence of the 
people at large, and without glimpse of change in the public opinion, 
but evidently with a growing confirmation of it; all this I regarded as 
a construction put on the Constitution by the nation, which, having 
made it, had the supreme right to declare its meaning; and regarding, 
moreover, the establishment of a Bank, under the existing circum- 


276 


Keys to Construction of Constitution 


stances, as the only expedient for substituting a sound currency in place 
of the vitiated one then working so much mischief, I did not feel my¬ 
self, as a public man, at liberty to sacrifice all these public considera¬ 
tions to my private opinion. 3 Writings of Madison, p. 542. 

Congressional Construction of the Constitution. 

In 1825, about a year before the death of Mr. Jefferson, Mr. 
Madison wrote him as follows, as to the Constructions being 
placed on the Constitution by Congress, as for utility: 

It seems strange, but it is a certain fact, that there are several in¬ 
stances of distinguished politicians who reject the general heresies of 
Federalism, most decidedly the amalgamating magic of the terms “Gen¬ 
eral welfare,” who yet admit the authority of Congress as to roads and 
canals, which they squeeze out of the enumerated articles. In truth, 
the great temptation of “utility,” brought home to local feelings, is the 
most dangerous snare for Constitutional orthodoxy; and I am not sure 
that the Judiciary branch of the Government is not a safer expositor of 
the power of Congress than Congress will be when backed, and even 
pushed cn, by their constituents, as in the canal and the Missouri cases. 
Were the unauthorized schemes of internal improvement as disagree¬ 
able to (a) majority of the people and of the States as they are deemed 
advantageous, who can doubt the different reasonings and result that 
would be observed within the walls of Congress? The will of the nation 
being omnipotent for right, is so far wrong also; and the will of the 
nation being in the majority, the minority must submit to that danger 
of oppression as an evil infinitely less than the danger to the whole 
nation from a will independent of it. I consider the question as to 
canals, &c., as decided, therefore, because sanctioned by the nation 
under the permanent influence of benefit to the major part of it; and if 
not carried into practice, will owe its failure to other than Constitu¬ 
tional obstacles. 3 Writings of Madison, p. 483. 

Keys to Construction of the Constitution. 

I am not sure that I understand your allusions to the origin of the 
Convention of 1787. If I do, you have overlooked steps antecedent to 
the interposition of the old Congress. That Convention grew out of the 
Convention at Annapolis, in August 1786, recommended by Virginia in 
the preceding winter. It had for its objects certain provisions only, 
relating to commerce and revenue. The Deputies who met, inferring 
from an interchange of information as to the state of the public mind 
that it had made a great advance, subsequent even to the act of Vir. 
ginia, towards maturity for a thorough reform of the Federal system, 
took the decisive step of recommending a convention, with adequate 
powers for the purpose. The Legislature of Virginia, being the first 
that assembled, set the example of compliance, and endeavored to 
strengthen it by putting General Washington at the head of the Depu¬ 
tation. 

I can not but highly approve the industry with which you have 
searched for a key to the sense of the Constitution, where alone the 
true one can be found, in the proceedings of the Convention, the co¬ 
temporary expositions, and, above all, in the ratifying conventions of 


Legislative Construction of Constitution 


277 


the States. If the instrument be interpreted by criticisms which lose 
sight of the intention of the parties to it, in the fascinating pursuit of 
objects of public advantage or convenience, the purest motives can be 
no security against innovations materially changing the features of the 
government. 3 Writings of Madison, pp. 521-522. 

Legislative Construction of the Constitution. 

Mr. Madison thus speaks of the subject: 

A Constitution being derived from a superior authority, is to be ex¬ 
pounded and obeyed, not controlled or varied, by the subordinate au¬ 
thority of a Legislature. A law, on the other hand, resting on no 
higher authority than that possessed by every successive Legislature, 
its expediency as well as its meaning is within the scope of the latter. 

The case in question has its true analogy in the obligation arising 
from judicial expositions of the law on succeeding judges; the Consti¬ 
tution being a law to the legislator, as the law is a rule of decision to 
the judge. 

An'd why are judicial precedents, when formed on due discussion and 
consideration, and deliberately sanctioned by reviews and repetitions, 
regarded as of binding influence, or, rather, of authoritative force in 
settling the meaning of a law? It must be answered, 1st. Because 
it is a reasonable and established axiom, that the good of society re¬ 
quires that the rules of conduct of its members should be certain and 
known, which would not be the case if any judge, disregarding the de¬ 
cision of his predecessors, should vary the rule of law according to his 
individual interpretation of it. Misera est servitus uM jus est aut 
vagum aut incognitum. 2. Because an exposition of the law publicly 
made, and repeatedly confirmed by the constituted authority, carried 
with it, by fair inference, the sanction of those who, having made the' 
law through their legislative organs, appear, under such circumstances, 
to have determined its meaning through their judiciary organ. 

Can it be of less consequence that the meaning of a Constitution 
should be fixed and known, that the meaning of a law should be so? 
Can, indeed, a law be fixed in its meaning and operation unless the Con¬ 
stitution be so? On the contrary, if a particular Legislature, differing 
in the construction of the Constitution from a series of preceding con¬ 
structions, proceed to act on that difference, they not only introduce 
uncertainty and instability in the Constitution, but in the laws them¬ 
selves; inasmuch as all laws preceding the new construction and incon¬ 
sistent with it are not only annulled for the future, but virtually pro¬ 
nounced nulllities from the beginning. 4 Writings of Madison, pp. 
184-5. 

It was in conformity with the view here taken, of the respect due to 
deliberate and reiterate precedents, that the Bank of the United States, 
though on the original question held to be unconstitutional, received 
the Executive signature in the year 1817. The act originally establish¬ 
ing a bank had undergone ample discussion in its passage through the 
several branches of the Government. It had been carried into execu¬ 
tion throughout a period of twenty years with annual legislative recog¬ 
nitions; in one instance, indeed, with a positive ramification of it into 
a new state; and with the entire acquiescence of all the local authori- 


278 Who Construes; Constitutional Intent Sought 

ties, as well as of the nation at large; to all of which may be added, a 
decreasing prospect of any change in the public opinion adverse to the 
constitutionality of such an institution. A veto from the Executive, 
under these circumstances, with an admission of the expediency and 
almost necessity of the measure, would have been a defiance of all the 
obligations derived from a course of precedents amounting to the re¬ 
quisite evidence of the national judgment and intention. 4 Writings 
of Madison, p. 186. 

Intent To Be Sought in Construction of the Constitution. 

A constitution is not to be interpreted on narrow or technical prin¬ 
ciples, but liberally and on broad general lines, in order that it may 
accomplish the objects of its establishment and carry out the general 
principles of government. Black on Constitutional Law, 67. 

It is a cardinal rule in the interpretation of constitutions that the 
instrument must be so construed as to give effect to the intention of 
the people, who adopted it. 

This intention is to be sought in the constitution itself, and the 
apparent meaning of the words employed is to be taken as expressing 
it, except in cases where that assumption would lead to absurdity, am¬ 
biguity, or contradiction. Black on Constitutional Law, 68. 

Who Construes the Constitution? 

Mr. Bryce, the great English statesman and constitutional 
law writer, thus answers the question: 

It is an error to suppose that the judiciary is the only interpreter 
of the Constitution, for a large field is left open to the other authori¬ 
ties of the government, whose views need not coincide, so that a dis¬ 
pute between those authorities, although turning on the meaning of 
the Constitution, may be incapable of being settled by any legal pro¬ 
ceeding. This causes no great confusion, because the decision, whether 
of the political or the judicial authority, is conclusive so far as regards 
the particular controversy or matter passed upon. 

The above is the doctrine now generally accepted in America. But 
at one time the Presidents claimed the much wider right of being, except 
in questions of pure private right, generally and prima facie entitled to 
interpret the Constitution for themselves, and to act on their own in¬ 
terpretation, even when it ran counter to that delivered by the Su¬ 
preme Court. Thus Jefferson denounced the doctrine laid down in the 
famous judgment of Chief Justice Marshall in the case of Marbury v. 
Madison, thus Jackson insisted that the Supreme Court was mistaken 
in holding that Congress had power to charter the United States bank, 
and that he, knowing better than the court did what the Constitution 
meant to permit, was entitled to attack the bank as an illegal insitu- 
tion, and to veto a bill proposing to re-charter it. Majorities in Con¬ 
gress have more than once claimed for themselves the same indepen¬ 
dence. But of late years both the executive and the legislature have 
practically receded from the position which the language formerly 
used seemed to assert. Bryce's American Commonwealth, Vol. I, 365-6. 

Every power alleged to be vested in the National government, or any 
organ thereof, must be affirmatively shown to have been granted. 


Who Construes; Constitutional Intent Sought 


279 


There is no presumption in favor of the existence of a power; on the 
contrary, the burden of proof lies on those who assert its existence, to 
point out something in the Constitution which, either expressly or by 
necessary implication, confers it. Just as an agent, claiming to act on 
behalf of his principal, must make out by positive evidence that his 
principal gave him the authority he relies on. Bryce's American Com~ 
monwealth, Vol. I, 368. 

When once the grant of a power by the people to the National gov¬ 
ernment has been established, that power will be construed broadly. 
The strictness applied in determining its existence gives place to lib¬ 
erality in supporting its application. The people—so Marshall and his 
successors have argued—when they confer a power, must be deemed to 
confer a wide discretion as to the means whereby it is to be used in 
their service. Bryce's American Commonwealth, Vol. I, 369. 

This doctrine of implied powers, and the interpretation of the words 
‘necessary and proper,” were for many years a theme of bitter and in¬ 
cessant controversy among American lawyers and publicists. The his¬ 
tory of the United States is in a large measure a history of the argu¬ 
ments which sought to enlarge or restrict its import. One school of 
statesmen urged that a lax construction would practically leave the 
States at the mercy of the National government, and remove those 
checks on the latter which the Constitution was designed to create; 
while the very fact that some powers were specifically granted must be 
taken to import that those not specified were either held, according to 
the old maxim expressio unius exclusio alterius, which Lord Bacon con¬ 
cisely explains by saying, “as exception strengthens the force of a law 
in cases not excepted, so enumeration weakens it in cases not enumer¬ 
ated.” It was replied by the opposite school that to limit the powers 
of the government to those expressly set forth in the Constitution would 
render that instrument unfit to serve the purposes of a growing and 
changing nation, and would, by leaving men no legal means of attain¬ 
ing necessary but originally uncontemplated aims, provoke revolution 
and work the destruction of the Constitution itself. Bryce's American 
Commonwealth, Vol. I, 370-1. 

In 1803, President Jefferson negotiated and completed the purchase 
of Louisiana, the whole vast possession of France beyond the Missis¬ 
sippi. He believed himself to be exceeding any powers which the Con¬ 
stitution conferred; and desired to have an amendment to it passed, in 
order to validate his act. But Congress and the people did not share 
his scruples, and the approval of the legislature was deemed sufficient 
ratification for a step of transcendent importance, which no provision 
of the Constitution bore upon. In 1807 and 1808 Congress laid, by two 
statutes, an embargo on all shipping in United States ports, thereby 
practically destroying the lucrative carrying trade of the New England 
States. Some of these States declared the Act unconstitutional, arguing 
that a power to regulate commerce was not power to annihilate it, 
and their courts held it to be void. Congress, however, persisted for a 
year, and the Act, on which the Supreme Court never formally pro¬ 
nounced, has been generally deemed within the Constitution, though 
Justice Story (who had warmly opposed it when he sat in Congress) 
remarks that it went to the extreme verge. More startling, and more 
far-reaching in their consequences, were the assumptions of Federal au- 




280 Broad and Strict Constructions of Constitution 

thority made during the Civil War by the executive and confirmed, some 
expressly, some tacitly, by Congress and the people. It was only a few 
of these that came before the courts, in some instances, disapproved 
them. But the executive continued to exert this extraordinary au¬ 
thority. Appeals made to the letter of the Constitution by the minority 
were discredited by the fact that they were made by persons sympathiz¬ 
ing with the Secessionists who were seeking to destroy it. So many 
extreme things were done under the pressure of necessity that some¬ 
thing less than these extreme things came to be accepted as a reason¬ 
able and moderate compromise. Bryce's American Commonwealth, Vol. 
I, 372-3. 

Broad and Strict Constructions of the Constitution. 

There has always been a party professing itself disposed to favor 
the central government, and therefore a party of broad construction. 
There has always been a, party claiming that it aimed at protecting the 
rights of the States, and therefore a party of strict construction. Some 
writers have gone so far as to deem these different views of interpreta¬ 
tion to be the foundation of all the political parties that have divided 
America. This view, however, inverts the facts. It is not because men 
have differed in their reading of the Constitution that they have advo¬ 
cated or opposed an extension of Federal powers; it is their attitude 
on this substantial issue that has determined their attitude on the 
verbal one. Moreover, the two great parties have several times changed 
sides on the very question of interpretation. The purchase of Louis¬ 
iana and the Embargo Acts were the work of the Strict Construction¬ 
ists, while it was the Loose Constructionist party which protested 
against the latter measure, and which, at the Hartford Convention of 
1814, advanced doctrines of State rights almost amounting to those sub¬ 
sequently asserted by South Carolina in 1832 and by the Secessionists of 
1861. Parties in America, as in most countries, have followed their 
temporary interest; and if that interest happened to differ from some 
traditional party doctrine, they have explained the latter away. When¬ 
ever there has been a serious party conflict, it has been in reality a con¬ 
flict over some living and practical issue, and only in form a debate 
upon canons of legal interpretation. What is remarkable, though nat¬ 
ural enough in a country governed by a written instrument, is that 
every controversy has got involved with questions of constitutional con¬ 
struction. Bryce's American Commonwealth, Vol. I, 378-9. 

Since the Civil War there has been much less of this casuistry be¬ 
cause there have been fewer occasions for it, the broad constructive 
view of the Constitution having practically prevailed—prevailed so far 
that the Supreme Court now holds that power of Congress to make 
paper money legal tender is incident to the sovereignity of the Na¬ 
tional government, and that a Democratic House of Representatives 
passes a bill giving a Federal commission vast powers over all the rail¬ 
ways which pass through more than one State. There is still a party 
inclined to strict construction, but the strictness which it upholds would 
have been deemed lax by the broad constructionists of thirty years ago. 
The interpretation which has thus stretched the dangerous resource. 
But it must be remembered that even the constitutions we call rigid 


Broad, Strict and Progressive Constructions 


281 


must make their choice between being bent or being broken. The Amer¬ 
icans have more than once bent their Constitution in order that they 
might not be forced to break it. Bryce's American Commonwealth, 
Vol. I, 3S0. 

Strict Constructions. 

Tlie Supreme Court thus speaks on the subject: 

What do men mean by a strict construction? If they contend only 
against that enlarged construction, which would extend words beyond 
their natural and obvious import, we might question the application of 
the term, but should not controvert the principle. If they contend for 
that narrow construction which, in support of some theory not to be 
found in he constitution, would deny to the government those powers 
which the words of the grant, as usually understood, import, and which 
are consistent with the general views and objects of the instrument, for 
that narrow construction, which would cripple the government, and 
render it unequal to the objects for which it is declared to be instituted, 
and to which the powers given, as fairly understood, render it compe¬ 
tent; then we can not perceive the propriety of this strict construction, 
nor adopt it as the rule by which the constitution is to be expounded. 
The grant does not convey power which might be beneficial to the 
grantor, if retained by himself, or which can enure to the benefit of the 
grantee; but is an investment of power for the general advantage, in 
the hands of agents selected for that purpose; which power can never 
be exercised by the people themselves, but must be placed in the hands 
of agents, or lie dormant. We know of no rule for construing the extent 
of such powers, other than is given by the language of the instrument 
which confers them, taken in connection with the purposes for which 
they were conferred. 9 Wheat., 188-189. 

Powerful and ingenious minds, taking as postulates that the powers 
expressly granted to the government of the Union, are to be contracted 
by construction into the narrowest possible compass, and that the origi¬ 
nal powers of the States are retained, if any possible construction will 
retain them, nay, by a course of well-digested but refined and metaphy¬ 
sical reasoning founded on the premises, explain away the constitution 
of our country, and leave it a magnificent structure, indeed, to look at, 
but totally unfit for use. They may so entangle and perplex the under¬ 
standing, as to obscure principles which were before thought quite 
plain, and induce doubts where, if the mind w T ere to pursue its own 
course, none would be perceived. In such a case, it is peculiarly neces¬ 
sary to recur to safe and fundamental principles to sustain those prin¬ 
ciples, and, when sustained, to make them the tests of the arguments to 
be examined. 9 Wheat., 222. 


Progressive Constructions. 

The Supreme Court 1 said in a recent case: 

There is no force in the argument that we have entered a new era 
requiring new and progressive adjudications, and that unless this court 


lr The Supreme Court, of course, 
stands by the Constitution; it has 
nothing to do with public policy, poli¬ 
tics, war, or necessity. It has no wish 


or will, hut judgment only. It repre¬ 
sents the minority, not the majority. 
It is the great balance-wheel of the 
government. 


282 


Immutability of the Constitution 


admits the power of the State to tax to be as claimed, it will enable 
aggregations of capital to escape just taxation, by the several States. 
This assertion, at best, but suggests that unless constitutional safe¬ 
guards be overthrown, harm will come and wrong will be done. In its 
last analysis, the claim is but a protestation that our institutions are 
a failure, that time has proven that this court should now recognize 
that fact and shape its adjudications accordingly. The claim is as un¬ 
sound as the fictitious assertions of expediency by which it is sought to 
be supported. If it be true that by the present enforcement of the Con¬ 
stitution and laws property will escape taxation, the remedy must 
come not from violating the constitution but from upholding it. 165 

U. S., 254 . 


The Immutability of the Constitution. 

The immutability of the Constitution, and that it should not 
yield to circumstances, nor be ignored in time of war, under 
the plea of necessity is best expressed in Ex parte Milligan, 4 
Wall. 120, where it is said: 

“The Constitution itself never yields to treaty or enactment; it 
neither changes with time, nor does it in theory bend to the force of 
circumstances. It may be amended according to its own permission; 
but while it stands, it is ‘a law for rulers and people, equally in war 
and in peace, 1 and covers with the shield of its protection all classes 
of men, at all times and under all circumstances.’ Its principles can 
not, therefore, be set aside in order to meet the supposed necessities of 
great crises. No doctrine involving more pernicious consequences was 
ever invented by the wit of man than that any of its provisions can be 
suspended during any of the great exigencies of government. Such a 
doctrine leads directly to anarchy and despotism, but the theory of 
necessity on which it is based is false; for the government within the 
Constitution has all the powers granted to it which are necessary to 
preserve its existence, as has been happily proved by the result of the 
great effort to throw off its just authority.” 1 Tucker's Const., p. 364 . 


Text-Books on Construction of the Constitution. 


Mr. Madison thus writes Mr. Jefferson as to substituting 
text-books for the Virginia Law School: 

Sidney and Locke are admirably calculated to impress on young 
minds the right of nations to establish their own Governments, and to 
inspire a love of free ones, but afford no aid in guarding our Republican 
charters against constructive violations. The Declaration of Inde¬ 
pendence, though rich in fundamental principles, and saying every¬ 
thing that could be said in the same number of words, falls nearly 
under a like observation. The “Federalist” may fairly enough be re- 


VThe above is true in theory only. 
In practice, the Constitution is one 
thing in war and another in peace. 
Adams, J. Q.. said we seem to have 
two Constitutions, a war Constitution 
and a peace Constitution. The truth 
is that in war, we Anglisize our Consti¬ 
tution, that is, Congress and the Presi¬ 


dent act as if we had no Constitution. 
They act under the rule of necessity, 
which knows no law. Congress dare 
not oppose the President; he becomes, 
during war, the law-maker, construer, 
and executioner. He must win the 
war, Constitution or no Constitution. 


Ratification of the Constitution 


283 


garded as the most authentic exposition of the text of the Federal 
Constitution, as understood by the body which prepared and the au¬ 
thority which accepted it. Yet it did not foresee all the misconstruc¬ 
tions which have occurred, nor prevent some that it did foresee. And 
what equally deserves remark, neither of the great rival parties have 
acquiesced in all its comments. It may, nevertheless, be admissible as 
a school book, if any will be that goes so much in detail. It has been 
actually admitted into two Universities, if not more—those of Harvard 
and Rhode Island; but probably at the choice of the Professors, with¬ 
out any injuncton from the superior authority. With respect to the 
Virginia Document of 1799, there may be more room for hesitation. 
Though corresponding with the predominant sense of the nation, being 
of local origin, and having reference to a state of parties not yet ex¬ 
tinct, an absolute prescription of it might excite prejudices against the 
University as under party banners, and induce the more bigoted to 
withhold from it their sons, even when destined for other than the 
studies of the Law School. 3 Writings of Madison, p. 481. 

I have for your consideration, sketched a modification of the opera¬ 
tive passage in your draught, with a view to relax the absoluteness of 
its injunction, and added to your list of documents the Inaugural Speech 
and the Farewell Address of President Washington. They may help 
down what might be less readily swallowed, and contain nothing which 
is not good; unless it be the laudatory reference in the address to the 
Treaty of 1795 with G. Britain, which ought not to weigh against 
the sound sentiments characterizing it. 3 Writings of Madison, p. 482. 

Ratification of the Constitution. 

The following is the language in part of the Virginia Con¬ 
vention which ratified the Constitution and in part the explana¬ 
tion of its meaning by the men who wrote the ratification 
clause, who did most in making the Constitution and who 
drafted the first amendments thereto, and who unquestionably 
knew more of the Constitution and its history than any men 
who ever dived. 

“We, the delegates of the people of Virginia, duly elected in pursuance 
of a recommendation from the General Assembly, and now met in Con- 
vention, having fully and freely investigated and discussed the proceed¬ 
ings of the Federal Constitution, and having prepared, as well as the 
most mature deliberation hath enabled us, to decide thereon—DO, in 
the name and in behalf of the people of Virginia, declare and make 
known, that the powers granted under the Constitution, being derived 
from the people of the United States, may be resumed by them when¬ 
soever the same shall be perverted to the injury or oppression; and that 
every power not granted thereby remains with them, and at their will. 
That, therefore, no right of any denomination can be cancelled, abridged, 
restrained, or modified, by the Congress, by the Senate or House of Rep¬ 
resentatives, acting in any capacity*, by the President, or any depart¬ 
ment or officer of the United States, except in those instances in which 
power is given by the Constitution for those purposes; and that, among 


284 


Ratification of the Constitution 


other essential rights, the liberty of conscience and of the press can not 
be cancelled, abridged, restrained, or modified, by any authority of the 
United States.” 

The father of the Constitution thus speaks on the subject: 

Here is an express and solemn declaration by the Convention of the 
State, that they ratified the Constitution in the sense that no right of 
any denomination can be cancelled, abridged, restrained, or modified, 
by the Government of the United States, or any part of it, except in 
those instances in which power is given by the Constitution; and in 
the sense, particularly, ‘‘that among other essential rights, the liberty 
of conscience and freedom of the press can not be cancelled, abridged, 
restrained, or modified, by any authority of the United States.” 

Words could not well express in a fuller or more forcible manner 
the understanding of the Convention, that the liberty of conscience and 
the freedom of the press were equally and completely exempted from 
all authority whatever of the United States. 

Under an anxiety to guard more effectually these rights against 
every possible danger, the Convention, after ratifying the Constitution, 
proceeded to prefix to certain amendments proposed by them a declara¬ 
tion of rights, in which are two articles providing, the one for the 
liberty of conscience, the other for the freedom of speech and of the 
press. Writings of James Madison, Vol. IV, 551. 

Mr. Davis thus states a part of the history of ratification: 

Massachusetts and New Hampshire, in their ordinances of ratifica¬ 
tion, expressing the opinion ‘‘that certain amendments and alterations 
in the said Constitution would remove the fears and quiet the apprehen¬ 
sions of many of the good people of this Commonwealth (State (New 
Hampshire) ), and more effectually guard against an undue adminis¬ 
tration of the Federal Government,” each recommended several such 
amendments, putting this at the head in the following form: 

‘‘That it be explicitly declared that all powers not expressly dele¬ 
gated by the aforesaid Constitution are reserved to the several States, 
to be by them exercised.” 

Of course, those staunch Republican communities meant the people 
of the States —not their governments, as something distinct from their 
people. 

New York expressed herself as follows: 

“That the powers of government may be reassumed by the people 
whenever it shall become necessary to their happiness; that every 
power, jurisdiction, and right, which is not by the said Constitution 
clearly delegated to the Congress of the United States, or the depart¬ 
ments of the Government thereof, remains to the people of the several 
States, or to their respective State governments, to whom they may he 
granted the same; and that those clauses in the said Constitution, which 
declare that Congress shall not have or exercise certain powers, do not 
imply that Congress is entitled to any powers not given by the said 
Constitution; but such clauses are<to be construed either as exceptions 
to certain specified powers or as inserted merely for greater caution.” 

South Carolina expressed the idea thus: 


Ratification of the Constitution 


285 


“This Convention doth also declare that no section or paragraph of 
the said Constitution warrants a construction that the States do not 
retain every power not expressly relinquished by them and vested in 
the General Government of the Union.” 

North Carolina proposed it in these terms: 

“Each State in the Union shall respectively retain every power, juris¬ 
diction, and right, which is not by this Constitution delegated to the Con¬ 
gress of the United States or to the departments of the General Govern¬ 
ment.” Davis on The Rise and Fall of The Confederate Government , 
Vol. 1,146-7. 

On a motion for New York to conditionally ratify the Con¬ 
stitution, Hamilton said: 

“My opinion is, that a reservation of a right to withdraw, if amend¬ 
ments be not decided on under the form of the Constitution within a 
certain time, is a conditional ratification; that it does not make New 
York a member of the new union, and, consequently, that she could not 
he received on that plan. The Constitution requires an adoption in toto 
and forever. It has been so adopted by the other states. An adoption 
for a limited time would be as defective as an adoption of some of the 
articles only. In short, any condition whatever must vitiate the ratifi¬ 
cation. The idea of reserving a right to withdraw was started at Rich¬ 
mond, and considered as a conditional ratification, which was itself 
abandoned as worse than a rejection.” Bancroft on the History of the 
Constitution of the United States, 459. 

Mr. Foster thus states part of the history of ratification: 

Much stress is laid, by the advocates of secession, upon the declara¬ 
tions in the ratifications of Virginia and New York. The ratification 
of New York is preceded by a declaration of twenty-four articles con¬ 
cerning political rights and the construction of the Constitution. These 
are followed by the declaration: 

“Under these impressions, and declaring that the rights aforesaid 
can not be abridged or violated, and that the explanations aforesaid 
are consistent with the said Constitution, and in confidence that the 
amendments which shall have been proposed to the said Constitution 
will receive an early and mature consideration, we, the said delegates, 
in the name and on behalf of the people of the State of New York, do 
by these presents assent to and ratify the said Constitution.” 

Manifestly, this declaration of the understanding in New York, to 
which the other States did not accede, could have no binding effect 
upon the construction of the instrument. It was not intended to be 
•either a reservation or a condition. 

But there is nothing in those declarations which tends to support 
the right of secession. The only one upon which stress is laid is the 
third, which states: 

“That the powers of the government may be reassumed by the peo¬ 
ple whensoever it shall become necessary to their happiness.” 

This merely refers to the right of revolution which is recognized in 
the Declaration of Independence, and does not claim to be a reservation 
of any legal right of receding from the instrument thus ratified. Simi¬ 
lar observations apply to the ratification of Virginia, which is preceded 
hy the declaration: 


286 


Ratification of the Constitution 


“That the powers granted under the Constitution, being derived 
from the people of the United States, may be resumed by them when¬ 
soever the same shall oe perverted to their injury or oppression, and that 
every power not granted thereby remains with them, and at their will.” 
Foster on the Constitution, Vol. 1, p. 72. 

In the New York Convention, Lansing moved a resolution which re¬ 
served the right to withdraw from the Union. Hamilton wrote for 
advice to Madison, who was in Congress at New York. The answer of 
Madison was read to the Convention by Hamilton as follows: 

“My opinion is, that a reservation of a right to withdraw, if amend¬ 
ments be not decided on under the form of the Constitution within a 
certain time, is conditional ratification; that it does not make New 
York a member of the new Union, and, consequently, that she could not 
be received on that plan. The Constitution requires an adoption in toto 
and forever. It has been so adopted by the other States. An adoption 
for a limited time would be as defective as an adoption of some of the 
articles only. In short, any condition whatever must vitiate the ratifi¬ 
cation. The idea of reserving a right to withdraw was started at Rich¬ 
mond, and considered as a conditional ratification, which was itself 
abandoned as worse than a rejection.” Foster on the Constitution, Vol. 
1, p. 73. 

Note. —Hamilton and Jefferson were Washington’s Constitutional 
advisers; yet Madison was the adviser of both Hamilton and Jeffer¬ 
son; both proclaimed him to be the wisest man as to constitutional 
government in the whole world. 

Webster answered Haynes as follows: 

“If the whole of the gentleman’s main proposition were conceded to 
him—that is to say, if I admit, for the sake of the argument, that the 
Constitution is a compact between States—the inferences which he 
draws from that proposition are warranted by no just reason; because, 
if the Constitution be a compact between States, still that Constitution, 
or that compact, has established a government with certain powers; 
and whether it be one of those powers, that it shall construe and in¬ 
terpret for itself the terms of the compact, in doubtful cases, can only 
be decided by looking to the compact, and inquiring what provisions it 
contains on this point. Without any inconsistency with natural reason, 
the government, even thus created, might be trusted with this power 
of construction. The extent of its power, therefore, must still be sought 
for in the instrument itself.” Foster on the Constitution, Vol. 1, p. 78. 

Mr. Gouverneur Morris explained the distinction between a federal, 
and a national government; the former being a mere compact resting 
on the good faith of the parties, the latter having a complete and com¬ 
pulsive operation. He contended that in all communities there must be 
one supreme power, and one only. 

Mr. Mason observed, not only that the present Confederation was 
deficient in not providing for coercion and punishment against delin¬ 
quent states, but argued very cogently, that punishment could not, in 
the nature of things, be executed on the State collectively, and there¬ 
fore that such a government was necessary as could directly operate 
on individuals, and would punish those only whose guilt required it. 
Foster on the Constitution, Vol. 1 , p. 85. 


Ratification of the Constitution 287 

Mr. Davis thus states the views of some of the makers: 

Mr. Gerry, a distinguished member from Massachusetts—afterward 
Vice-President of the United States—said, “If nine out of thirteen 
(States) can dissolve the compact, six out of nine will be just as able 
to dissolve the future one hereafter.” 

Mr. Madison, who was one of the leading members of the Convention, 
advocating afterward, in the “Federalist,” the adoption of the new Con¬ 
stitution, asks the question, “On what principle the Confederation, 
which stands in the solemn form of a compact among the States, can 
be superseded without the unanimous consent of the parties to it?” 
He answers this question “by recurring to the absolute necessity of the 
case; to the great principle of self-preservation; to the transcendent 
law of nature and of nature’s God, which declares that the safety and 
happiness of society are the objects at which all political institutions 
aim, and to which all such institutions must be sacrificed.” Davis on 
The Rise and Fall of The Confederate Government , Yol. I, 100. 

The article declares that “the ratification of the Convention of nine 
States shall be sufficient for the establishment of this Constitution”— 
not between all, but— “between the States so ratifying the same.” It 
is submitted whether a fuller justification of this right of the nine 
States to form a new Government is not found in the fact of the sov¬ 
ereignty in each of them, making them “a law unto themselves,” and 
therefore the final judge of what the necessities of each community de¬ 
mand. Davis on The Rise and Fall of The Confederate Government , 
Yol. I, 101. 

It was not even established by the States in the aggregate, nor was 
it proposed that it should be. It was submitted for the acceptance of 
each separately, the time and place at their own option, so that the 
dates of ratification did extend from December 7, 1787, to May 29, 1790. 
The long period required for these ratifications makes manifest the ab¬ 
surdity of the assertion, that it was a decision by the votes of one 
people, or one community, in which a majority of the votes cast de¬ 
termined the result. 

We have seen that the delegates to the Convention of 1787 were 
chosen by the several States, as States— it is hardly necessary to add 
that they voted in the Convention, as in the Federal Congress, by States, 
—each State casting one vote. We have seen, also, that they were 
sent for the “sole and express purpose” of revising the Articles of Con¬ 
federation and devising means for rendering the Federal Constitution 
“adequate to the exigencies of government and the preservation of the 
Union.” Davis on The Rise and Fall of The Confederate Government, 
Yol. I, 102. 

Mr. Madison, who was one of the most distinguished of its authors 
and signers, writing after it was completed and signed, but before it 
was ratified, said: “It is time now to recollect that the powers (of the 
Convention) were merely advisory and recommendatory; that they were 
so meant by the States, and so understood by the Convention ; and that 
the latter have accordingly planned and proposed a Constitution, which 
is to be of no more consequence than the paper on which it is written, 


288 


Objections to Ratification of the Constitution 


unless it be stamped with the approbation of those to whom it is ad¬ 
dressed.”— (“Federalist,” No. XL). Davis on The Rise and Fall of The 
Confederate Government, Vol. I. 103. 

The acceptance of these eleven States having been signified to the 
Congress, provision was made for putting the new Constitution in oper¬ 
ation. This was affected on March 4, 1789, when the Government was 
organized, with George Washington as President, and John Adams, 
Vice-President; the Senators and Representatives elected by the States 
which had acceded to the Constitution, organizing themselves as a 
Congress. 

Meantime, two States were standing, as we have seen, unquestioned 
and unmolested, in an attitude of absolute independence. The Conven¬ 
tion of North Carolina, of August 2, 1788, had rejected the proposed Con¬ 
stitution. Davis on The Rise and Fall of The Confederate Government, 
Vol. I, 110. 

More than a year afterward, when the newly organized Government 
had been in operation for nearly nine months, and when—although no 
convention of the States had been called to revise the Constitution- 
North Carolina had good reason to feel assured that the most important 
provisions of her proposed amendments and “declaration of rights” 
would be adopted, she acceded to the amended compact. On November 
21, 1789, her Convention agreed, “in behalf of the freemen, citizens, 
and inhabitants of the State of North Carolina to “adopt and ratify” 
the Constitution. 

In Rhode Island the proposed Constitution was at first submitted to 
a direct vote of the people, who rejected it by an overwhelming ma¬ 
jority. Subsequently,—that is, on May 29, 1790, when the reorganized 
Government had been in operation for nearly fifteen months, and when 
it had become reasonably certain that the amendments thought neces¬ 
sary would be adopted—a convention of the people of Rhode Island ac¬ 
ceded to the new Union, and ratified the Constitution, though even 
then by a majority of only two votes in sixty-six—34 to 32. The ratifi¬ 
cation was expressed in substantially the same language as that which 
has now been so repeatedly cited: 

“We, the delegates of the people of the State of Rhode Island and 
Providence Plantations, duly elected and met in convention, * * * 

in the name and behalf of the people of Rhode Island and Providence 
Plantations, so, by these presents, assent to and ratify the said Con¬ 
stitution.” Davis on The Rise and Fall of The Confederate Govern¬ 
ment, Vol. I, 111. 

If a ratification had been required of all the States instead of nin& 
as a condition precedent to give it life and motion, it is now known 
that it would never have been ratified. North Carolina in her first 
convention rejected it; and Rhode Island did not accede to it until 
more than a year after it had been in operation. Some delicate ques¬ 
tions, under a different state of things, might have arisen. Story on 
the Constitution, Vol. V, p. 618, § 1851. 

Objections to Ratification of the Constitution. 

It is well known that great opposition was made to the adoption of 
the Constitution. It was acknowledged on all sides, at the time, that 


Objections to Ratification of the Constitution 289 

the old Confederation, from its weakness, had failed, and that some¬ 
thing must he done to save the country from anarchy and convulsion; 
yet, so high was the spirit of liberty—so jealous were our ancestors of 
that day of power, that the utmost efforts were necessary, under all 
the then existing pressure, to obtain the assent of the States to the 
ratification of the Constitution. Among the many objections to its 
adoption, none were more successfully urged than the absence, in the in¬ 
strument, of those general provisions which experience had shown to 
be necessary to guard the outworks of liberty: such as the freedom of 
the press and of speech,—the rights of conscience,—of trial by jury, 
and others of like character. It was the belief of those jealous and 
watchful guardians of liberty, who viewed the adoption of the Con¬ 
stitution with so much apprehension, that all these sacred barriers, 
without some positive provision to protect them, would, by the power 
of construction, be undermined and prostrated. So strong was this 
apprehension, that it was impossible to obtain a ratification of the in¬ 
strument in many of the States without accompanying it with the rec¬ 
ommendation to incorporate in the Constitution various articles, and 
amendments, intended to remove this defect, and guard against the 
danger apprehended, by placing these important rights beyond the pos¬ 
sible encroachment of Congress. 5 Calhoun's Works, pp. 192-3. 

When the Constitution was first framed, ft was received by a great 
many thinking people with much distrust. An examination of the his¬ 
tory of the proceedings of the conventions of the States, which were 
called to ratify and confirm that instrument, and without which it 
would have had no efficacy, will show that it was fiercely assailed, and 
that in the debates in regard to its adoption in several of the States 
the issue was for a long time doubtful. Miller's Const., p. 90. 

Washington wrote to Patrick Henry, September 24, 1787: “I wish 
the Constitution which is offered had been more perfect; but it is the 
best that could be obtained at this time, and a door is opened for amend¬ 
ments hereafter. The political concerns of this country are suspended 
by a thread. The convention has been looked up to by the reflecting 
part of the community with a solicitude which is hardly to be con¬ 
ceived; and if nothing had been agreed on by that body, anarchy would 
soon have ensued, the seeds being deeply sown in every soil.” Ban¬ 
croft's History of the Constitution, Vol. 2, p. 231; Miller's Const., Note, 
p. 90. 

At the first Congress after the organization of the Government, the 
House proposed seventeen amendments to the Constitution. These 
were by the Senate reduced to twelve, and they were then submitted to 
the States. Miller's Const., Note, p. 92. 

“It is universally understood, it is a part of the history of the day, 
that the great revolution which established the Constitution of the 
United States was not effected without immense opposition. Serious 
fears were extensively entertained that those powers which the patriot 
statesmen, who then watched over the interests of our country, deemed 
essential to union, and to the attainment of those invaluable objects 
for which union was sought, might be exercised in a manner dangerous 
to liberty. In almost every convention by which the Constitution was 
adopted, amendments to guard against the abuse of power were recom- 


290 Objections to Ratification of the Constitution 

mended. These amendments demanded security against the appre¬ 
hended encroachments of the General Government—not against those 
of the local governments. In compliance with a sentiment thus gen¬ 
erally expressed, to quiet fears thus extensively entertained, amend¬ 
ments were proposed by the required majority in Congress, and adopted 
by the States. These amendments contain no expression indicating an 
intention to apply them to the State governments. This court can not 
so apply them.” Chief Justice Marshall in Barron v. Mayor and Council 
of Baltimore, 7 Pet. 243, 230; Miller's Const., note, p. 93. 

It was said to be inconsistent with the genius of the Government 
which they were establishing, that any one man should exercise the 
extraordinary authority which that instrument vested in the President 
of the United States; that the appointment of all the officers of the 
Federal Government, the distribution of all its patronage, and the con¬ 
trol of its army and navy, would, in process of time, enable some man 
to build up a power that could not be resisted. It was argued that 
some one would arise who, by that power and with that inclination, 
would destroy the really democratic features of our government, and 
finally establish a monarchy in its place. Miller's Const., p. 94. 

The branch of the Government which has grown the most, and which 
a sagacious man might perhaps have foreseen would so expand, is the 
legislative. Miller's Const., p. 95. 

The judicial branch is the weakest of all. It has no army. It has 
no navy, and it has no purse. It has no officers, except its marshals, 
and they are appointed by the President and confirmed by the Senate. 
They are the officials to whom its processes are sent, but they may be 
removed at any time by the Executive. Miller's Const., p. 96. 

Montesquieu said that the English constitution would perish when 
the legislative power becomes more corrupt than the executive. 

Montesquieu says: “The judiciary is the weakest of the three de¬ 
partments of the government.” Millers Const., note, p. 96. 

Rhode Island declined to ratify the Constitution, because it granted 
Congress the power to regulate commerce. Its favorable ports were a 
great source of revenue, which it did not desire to lose. Miller's Const., 
pp. 8, 9. 

Among the most serious objections to the ratification, were 
(1) the absence of a bill of rights; (2) That the States were 
not on an equal footing, the larger ones having more repre¬ 
sentatives in the lower house, and more power as to the elec¬ 
tion of a president and vice-president. (3) That the Executive 
power was vested in one individual,, in whom was vested pow¬ 
ers too great, that it would prevent a free government. That 
the right to appoint all officers and to succeed himself, would 
lead to monarchy. This objection is the most plausible of all, 
and no doubt affords the means of destroying a free govern¬ 
ment, especially in time of war. He then controls the army 
and navy, and the treasury. He then holds the sword and 


Bills or Declarations of Rights 


291 


purse. To oppose any of his policies or acts, renders those 
who do so, no matter what their authority or office may he, 
to be denominated as traitors and enemies of the government, 
and renders them liable to be proceeded against as such, no 
matter how pure their motives, or how free from traitorous 
conduct. In times of war Congress practically surrenders the 
law making power to the president, and the armies acting un¬ 
der him practically usurp the powers and functions of the 
judiciary. 

The people of all the States were divided into two classes; 
one which desired a strong central government, with extensive 
and sovereign powers; the other who desired a mere Con¬ 
federacy or federation of States, with but few and very limited 
sovereign powers. The Constitution was a compromise be¬ 
tween the two. Before it was adopted its enemies claimed to 
the one class that the government was too weak and puerile 
to be of any benefit, and to the other that it was too strong 
and unlimited in its powers, and would destroy the States. 

After the Constitution was adopted the one class were 
known as Federalists, the other as Republican; later they 
were known as Unionists and States Rights, and now as Re¬ 
publicans and Democrats. 

Bills or Declarations of Rights. 

It seems that Mr. Madison submitted to Mr. Jefferson, the 
first batch of amendments to the Constitution, which were to 
take the place of the overruled bill of rights in the original 
constitution, and the following are his comments: 

I must now say a word on the declaration of rights, you have been 
so good as to send me. I like it, as far as it goes; but I should have 
been for going further. For instance, the following alterations and 
additions would have pleased me: Article 4. “The people shall not 
be deprived of their right to speak, to write, or otherwise to publish 
anything but false facts affecting injuriously the life, liberty, property 
or reputation of others, or affecting the peace of the confederacy with 
foreign nations. Article 7. All facts put in issue before any judicature, 
shall be tried by jury, except, 1, in cases of admiralty jurisdiction, 
wherein a foreigner shall be interested; 2, in cases cognizable before a 
court martial, concerning only the regular officers, and soldiers of the 
United States, or members of the militia in actual service in time of 
war or insurrection; and 3, in impeachments allowed by the constitu¬ 
tion. Article 8. No person shall be held in confinement more than- 

days after he shall have demanded and been refused a writ of habeas 

corpus by the judge appointed by law, nor more than-days after 

such writ shall have been served on the person holding him in confine¬ 
ment, and no order given on due examination for his remandment or 


292 


Bills or Declarations of Bights 


discharge, nor more than-hours in any place at a greater distance 

than-miles from the usual residence of some judge authorized to 

issue the writ of habeas corpus; nor shall that writ be suspended for 
any term exceeding one year, nor in any place more than-miles dis¬ 

tant from the State or encampment of enemies or of insurgents. Article 

9. Monopolies may be allowed to persons for their own productions in 

literature, and their own inventions in the arts, for a term not exceed¬ 
ing-- years, but for no longer term, and no other purpose. Article 

10. All troops of the United States shall stand ipso facto disbanded, 
at the expiration of the term for which their pay and subsistence shall 
have been voted by Congress, and all officers and soldiers, not natives 
of the United States, shall be incapable of serving in their armies by 
land, except during a foreign war.” These restrictions I think are so 
guarded, as to hinder evil only. However, if we do not have them now, 
I have so much confidence in my countrymen, as to be satisfied that we 
shall have them as soon as the degeneracy of our government shall 
render them necessary. 7 Jefferson's Writings, (mem. ed.J, pp. 450, 
451, 452. 

On March 15, 1789, Mr. Jefferson wrote Mr. Madison, rela¬ 
tive to the first amendments to the Constitution, which were 
to take the place of a bill of rights, omitted from the original; 
among the good things he said, I quote the following: 

In the arguments in favor of a declaration of rights, you omit one 
which has great weight with me; the legal check which it puts into 
the hands of the judiciary. This is a body, which, if rendered inde¬ 
pendent and kept strictly to their own department, merits great confi¬ 
dence for their learning and integrity. In Tact, what degree of confi¬ 
dence would be too much, for a body composed of such men as Wythe, 
Blair and Pendleton? On characters like these, the ( ‘civium ardor 
parva jubentium ” would make no impression. I am happy to find that, 
on the whole, you are a friend to this amendment. The declaration of 
rights is, like all other human blessings, alloyed with some inconven¬ 
iences, and not accomplishing fully its object. But the good in this in¬ 
stance, vastly overweighs the evil. I can not refrain from making 
short answers to the objections which your letter states to have been 
raised. 1. That the rights in question are reserved, by the manner in 
which the Federal powers are granted. Answer. A constitutive act 
may, certainly, be so formed, as to need no declaration of rights. The 
act itself has the force of a declaration, as far as it goes; and if it goes 
to all material points, nothing more is wanting. In the draught of a 
constitution which I had once a thought of proposing in Virginia, and 
printed afterwards, I endeavored to reach all the great objects of public 
liberty, and did not mean to add a declaration of rights. Probably the 
object was imperfectly executed; but the deficiencies would have been 
supplied by others, in the course of discussion. But in a constitutive 
act which leaves some precious articles unnoticed, and raises implica¬ 
tions against others, a declaration of rights becomes necessary, by way 
of supplement. This is the case of our new Federal Constitution. This 
instrument forms us into one State, as to certain objects, and gives us 
a legislative and executive body for these objects. It should, therefore, 






Bills or Declarations of Bights 


293 


guard us against their abuses of power, within the field submitted to 
them. 2. A positive declaration of some essential rights could not be 
obtained in the requisite latitude. Answer. Half a loaf is better than 
no bread. If we can not secure all our rights, let us secure what we 
can. 3. The limited powers of the Federal government, and jealousy 
of the subordinate governments, afford a security which exists in no 
other instance. Answer. The first member of this seems resolvable into 
the first objection before stated. The jealousy of the subordinate gov¬ 
ernments is a precious reliance. But observe that those governments 
are only agents. They must have principles furnished them, whereon 
to found their opposition. The declaration of rights will be the text, 
whereby they will try all the acts of the Federal government. In this 
view, it is necessary to the Federal government also; as by the same 
text, they may try the opposition of the subordinate governments. 4. 
Experience proves the inefficacy of a bill of rights. True. But though 
it is not absolutely efficacious under all circumstances, it is of great 
potency always, and rarely inefficacious. A brace the more will often 
keep up the building which would have fallen, with that brace the less. 
There is a remarkable difference between the characters of the incon¬ 
veniences which attend a declaration of rights, and those which attend 
the want of it. The inconveniences of the declaration are, that it may 
cramp governments in its useful exertions. But the evil of this is 
short-lived, moderate and reparable. The inconveniences of the want 
of a declaration are permanent, afflicting and irreparable. They are in 
constant progression from bad to worse. The executive, in our gov¬ 
ernments, is not the sole, it ’is scarcely the principal object of my 
jealousy. The tyranny of the legislatures is the most formidable dread 
at present, and will be for many years. That of the executive will 
come in its turn; but it will be at a remote period. I know there are 
some among us, who would establish a monarchy. But they are 
inconsiderable in number and weight of character. The rising race are 
all republicans. We were educated in royalism; no wonder, if some of 
us retain the idolatry still. Our young people are educated in republi¬ 
canism; an apostasy from that to royalism, is unprecedented and im¬ 
possible. I am much pleased with the prospect that a declaration of 
rights will be added; and I hope it will be done in that way, which 
will not endanger the whole frame of government, or any essential part 
of it. 7 Jefferson's Writings , (mem. ed.) pp. 309, 310, 311 and 312. 

Mr. Madison thus wrote Mr. Jefferson as to the propriety 
of a bill of Rights in the Constitution: 

What use, then, it may be asked, can a bill of rights serve in popu¬ 
lar Government? I answer, the two following, which, though less 
essential than in other Governments, sufficiently recommend the pre¬ 
caution; 1. The political truths declared in that solemn manner ac¬ 
quire by degrees the character of fundamental maxims of free Govern¬ 
ment, and as they become incorporated with the National sentiment, 
counteract the impulses of interest and passion. 2. Although it be gen¬ 
erally true, as above stated, that the danger of oppression lies in the in¬ 
terested majorities of the people rather than in usurped acts of the 


294 


Bills or Declarations of Bights 


Government, yet there may be occasions on which the evil may spring 
from the latter source; and on such, a bill of rights will be a good 
ground for an appeal to the sense of the community. Perhaps, too, 
there may be a certain degree of danger that a succession of artful and 
ambitious rulers may, by gradual and well-timed advances, finally erect 
an independent Government on the subversion of liberty. Should this 
danger exist at all, it is prudent to guard against it, especially when 
the precaution can do no injury. 1 Writings of Madison, p. ^26. 

Mr. Hamilton, 1 replying to the objection that the Constitution con¬ 
tains no bill or declaration of rights, argues that it was entirely un¬ 
necessary, because in reality the people—that is, of course, the people, 
respectively, of the several States, who were the only people known to 
the Constitution or to the country—had surrendered nothing of their 
inherent sovereignty, but retained it unimpaired. He says: “Here, 
in strictness, the people surrender nothing; and, as they retain every¬ 
thing, they have no need of particular reservations.” And again: “I 
go further, and affirm that bill of rights, in the sense and to the extent 
they are contended for, are not only unnecessary in the proposed Con¬ 
stitution, but would be absolutely dangerous. They would contain vari¬ 
ous exceptions to powers not granted, and on this very account would 
afford a colorable pretext to claim more than were granted. For why 
declare that things shall not be done, which there is no danger to do?” 
Could language be more clear or more complete in vindication of the 
principles laid down in this work? Mr. Hamilton declares, in effect, 
that the grants to the Federal Government in the Constitution are not 
surrenders, but delegations of power where it was before; and that the 
delegations of power were strictly limited to those expressly granted— 
in tnis, merely anticipating the tenth amendment, afterward adopted, 
Davis on The Rise and Fall of the Confederate Government, Vol. I, 163. 

A bill of rights is a formal declaration, in a constitution, of the fun¬ 
damental natural, civil, and political rights of the people which are to 
be secured and protected by the government. 2 Black, on Constitutional 
Laws, 10. 


Judge Dillon thus speaks on the subject: 

“This distinction,” said the Supreme Court in Poindexter v. Green- 
how, 114 U. S. Rep., 270, 291,” is essential to the idea of constitutional 
Government. To deny it or blot it out obliterates the line of demarca¬ 
tion that separates constitutional government from absolutism, free 
self-government based on the sovereignty of the people from that 
despotism, whether of the one or the many, which enables the agent 


J Mr. Hamilton was opposed to a bill 
of rights. In the Federalist No. 84, he 
treats the subject at length. He 
argued that one could not enumerate 
all the reserved rights and hence, it 
might be construed to be a denial of 
those not enumerated. This was 
avoided at the suggestion of Jefferson 
and Madison by having one of the bills 
to provide that the enumeration of the 


rights so reserved should not be con¬ 
strued to be a denial of others not so 
enumerated. 

2 It is in the nature both of the 
reservation and a covenant. The 
grantor, the people, reserve the rights 
to themselves and their descendants, 
and the grantee, the government, 
covenants to defend and secure them to 
the grantors and their successors. 


Bills or Declarations of Rights 


295 


of the State to declare and decree that he is the State; to say, ‘L’Etat 
c’est moi.’ Of what avail are written constitutions whose bills of right 
for the security of individual liberty have been written, too often, with 
the blood of martyrs shed upon the battlefield and the scaffold, if their 
limitations and restraints upon power may be overpassed with impunity 
by the very agencies created and appointed to guard, defend, and en¬ 
force them; and that too with the sacred authority of law, not only com¬ 
pelling obedience, but entitled to respect? And how else can these prin¬ 
ciples of individual liberty and right be maintained, if, when violated, 
the judicial tribunals are forbidden to visit penalties upon individual 
offenders who are the instruments of wrong, when they interpose the 
shield of the State? The doctrine is not to be tolerated. The whole 
frame and scheme of the political institutions of this country, State 
and Federal, protest against it. Their existence is not compatible with 
it. It is the doctrine of absolutism, pure, simple and naked; and of 
communism which is its twin*,—the double progeny of the same evil 
birth.” Judge Dillon's Lectures, The Laws and Jurisprudence of Eng¬ 
land and America , 228. 

Judge Story thus speaks of their importance: 

In the first place, a bill of rights, in the very sense of this reason¬ 
ing, is admitted in some cases to be important; and the Constitution 
itself adopts and establishes its propriety to the extent of its actual 
provisions. Every reason which establishes the propriety of any pro. 
vision of this sort in the Constitution, such as a right of trial by jury 
in criminal cases, is, pro tanto, proof that it is neither unnecessary 
nor dangerous. It reduces the question to the consideration, not wheth¬ 
er any bill of rights is necessary, but what such a bill of rights should 
properly contain. Story on the Constitution, Vol V, p. 624, § 1863. 

In the next place a bill of rights is important, and may often be in¬ 
dispensable, whenever it operates as a qualification upon powers actual¬ 
ly granted by the people to the government. This is the real ground of 
all the bills of rights in the parent country, in the colonial constitu¬ 
tions and laws, and in the State constitutions. In Efigland, the bills 
of rights were not demanded merely of the crown, as withdrawing a 
power from the royal prerogative; they were equally important, as 
withdrawing power from Parliament. A large proportion of the most 
valuable of the provisions in the Magna Charta, and the Bill of Rights 
in 1688, consists of a solemn recognition of limitations upon the power 
of Parliament; that is, a declaration that Parliament ought not to 
abolish or restrict these rights. Story on the Constitution, Vol. V, p. 
624-5, § 1864. 

A bill of rights, then, operates as a guard upon an extravagant or 
undue extension of such powers. Besides, as has been justly remarked, 
a bill of rights is of real efficiency in controlling the excesses of party 
spirit. It serves to guide and enlighten public opinion, and to render 
it more quick to detect, and more resolute to resist, attempts to disturb 
private rights. It requires more than ordinary hardihood and audacity 
of character to trample down principles which our ancestors have conse¬ 
crated with reverence; which we imbibed in our early education; which 


296 


Bills or Declarations of Bights 


recommend themselves to the judgment of the world by their truth and 
simplicity; and which are constantly placed before the eyes of the peo¬ 
ple, accompanied with the imposing force and solemnity of a constitu¬ 
tional sanction. Bills of right are a part of the muniments of freemen, 
showing their title to protection; and they become of increased value 
when placed under the protection of an independent judiciary instituted 
as the appropriate guardian of the public and private rights of the citi¬ 
zens. Story on the Constitution, Vol. V, p. 625-6, § 1865. 

Judge Black speaks as follows: 

Almost without exception, the great guaranties which secure the 
natural, civil, and political rights of the citizen, and protect him against 
tyranny or oppression, were derived from the great charters and legis¬ 
lative enactments of Great Britain which had become a fixed part of 
her constitution, or from the common law, which the Americans 
claimed as their natural heritage and shield. Among these rights we 
may mention that of “due process of law*,” of trial by jury, of the bene¬ 
fit of the writ of habeas corpus, of security against unreasonable 
searches and seizures, and many of the rights secured to persons on 
trial for criminal offenses. The several states, in framing their con¬ 
stitutions, have been guided and influenced by the same theories and 
doctrines, and by the prevalence of the same political ideas among the 
people, and also in later times, and to a very considerable degree, by 
the constitution of the United States. Black on Constitutional Laws, 
9-10. 

The idea, as well as the name, of a bill of rights, was undoubtedly 
suggested by certain great charters of liberty well known in English 
constitutional history, and particularly the “Bill of Rights” passed in 
the first year of the reign of William and Mary, A. D. 1689. Black on 
Constitutional Laws, 11. 

Mr. Hamilton was opposed to a bill of rights 1 in the Consti¬ 
tution. He discusses the subject in Number LXXXIY of The 
Federalist, and among other things said: 

I go further, and affirm that bills of rights, in the sense and to the 
extent in which they are contended for, are not only unnecessary in 
the proposed Constitution, but would even be dangerous. They would 
contain various exceptions to powers not granted; and, on this very ac¬ 
count, would afford a colorable pretext to claim more than were granted. 
For why declare that things shall not be done which there is no power 
to do? Why, for instance, should it be said that the liberty of the press 
shall not be restrained, when no power is given by which restrictions 
may be imposed? I will not contend that such a provision would con¬ 
fer a regulating power; but it is evident that it would furnish, to men 
disposed to usurp, a plausible pretense for claiming that power. They 
might urge with a semblance of reason, that the Constitution ought 
not to be charged with the absurdity of providing against the abuse 
of an authority which was not given, and that the provision against 

lr The first ten amendments to the among themselves, and promised those 
Federal Constitution form its Bill of who opposed it. that as soon as prac- 

Rights. The Constitution never would ticable it would he amended so as to 

have been ratified but for the fact that contain a Bill of Rights, 
the friends of the Constitution agreed 


The American Political Chart 


297 


restraining the liberty of the press afforded a clear implication, that a 
power to prescribe proper regulations concerning it was intended to be 
vested in the national government. This may serve as a specimen of 
the numerous handles which would be given to the doctrine of con¬ 
structive powers, by the indulgence of an injudicious zeal for bills of 
rights. Hamilton in The Federalist, Vol. II, Number LXXXIV. 

The Political Chart for the American Ship of State 

Washington’s farewell address and Thomas Jefferson’s first 
inaugural address have always been looked upon as a kind of 
political chart for the guidance of the American ship of state. 
No state papers have ever received more attention or have been 
held in higher veneration by the American statesmen to whom 
the guidance of the American Government has been intrusted 
than these two documents. 

For this reason the compiler has deemed it proper to set out 
these two great state papers for ready reference by those who 
may desire to study or refer to them. 

Next to them in importance may be considered the Monroe 
Doctrine.—officially and authentically announced by Mr. Mon¬ 
roe during the second term of his administration. The origi¬ 
nator of the principles and thought announced in this doctrine 
has been, by historians, ascribed to quite a number of different 
statesmen. It is the opinion of the compiler that the doctrine 
was the natural growth or outcome of Washington’s farewell 
address and Thomas Jefferson’s inaugural address, which the 
occasion and condition prevailing during Monroe’s administra¬ 
tion rendered necessary to formulate the thought and prin¬ 
ciples into a specific declaration. 

The correspondence between President Monroe and Mr. Jef¬ 
ferson and Mr. Adams reveals that the subject was discussed 
by these three men. Monroe applied to both Mr. Jefferson 
and Mr. Madison for their advice as to the proper course for 
him to pursue as the best American policy under the then 
existing conditions as to the relations of the United States 
of America to other nations. Replies of Mr. Jefferson and 
Mr. Madison to these requests of President Monroe contain 
the clearest, and most succinct definitions of the Monroe Doc¬ 
trine that have ever been announced. The principles and doc¬ 
trines are more succinctly and more clearly stated in these 
letters of Mr. Jefferson and Mr. Madison to President Monroe 
than they are even in the proclamation of Mr. Monroe, which 
first announced the doctrine, and from which it received its 
name. The doctrine as finally announced in this proclamation 


298 


Washington’s Farewell Address 


was no doubt either drafted by or revised by Mr. J. Q. Adams 
who was then President Monroe’s Secretary of State, and who 
was his successor as president. The doctrine, however, as it 
has been interpreted is not so well expressed by Mr. Adams or 
Mr. Monroe as was done by Mr. Jefferson or Mr. Madison. 
The compiler wishes it were practicable to set out this corre¬ 
spondence in full as it certainly enables one to more clearly 
understand the doctrine than can be done from any other 
source which the compiler has been able to find. 

George Washington’s Farewell Address 

United States, September 17, 1796. 

Friends and Fellow-Citizens: 

The period for a new election of a citizen to administer the Execu¬ 
tive Government of the United States being not far distant, and the 
time actually arriving when your thoughts must be employed in des¬ 
ignating the person who is to be clothed with that important trust, it 
appears to me proper, especially as it may conduce to a more distant 
expression of the public voice, that I should now apprise you of the 
resolution I have formed to decline being considered among the number 
of those out of whom a choice is to be made. 

I beg you at the same time to do me the justice to be assured that 
this resolution has not been taken without a strict regard to all the 
considerations appertaining to the relation which binds a dutiful citi¬ 
zen to his country; and that in withdrawing the tender of service, 
which silence in my situation might imply, I am influenced by no 
diminution of zeal for your future interest, no deficiency of grateful 
respect for your past kindness, but am supported by a full conviction 
that the step is compatible with both. 

The acceptance of and continuance hitherto in the office to which 
your suffrages have twice called me have been a uniform sacrifice of 
inclination to the opinion of duty and to a deference for what appeared 
to be your desire. I constantly hoped that it would have been much 
earlier in my power, consistently with motives which I was at liberty 
to disregard, to return to that retirement from which I had been reluc¬ 
tantly drawn. The strength of my inclination to do this previous to 
the last election had even led to the preparation of an address to de¬ 
clare it to you; but mature reflection on the then perplexed and criti¬ 
cal posture of our affairs with foreign nations and the unanimous advice 
of persons entitled to my confidence impelled me to abandon the idea. 
I rejoice that the state of your concerns, external as well as internal, 
no longer renders the pursuit of inclination incompatible with the 
sentiment of duty or propriety, and am persuaded, whatever partiality 
may be retained for my services, that in the present circumstances of 
our country you will not disapprove my determination to retire. 

The impressions with which I first undertook the arduous trust were 
explained on the proper occasion. In the discharge of this trust I will 
only say that I have, with good intentions, contributed toward the 
organization and administration of the Government the best exertions 
of which a very fallible judgment was capable. Not unconscious in the 


Washington's Farewell Address 


299 


outset of the inferiority of my qualifications, experience in my own 
eyes, perhaps still more in the eyes of others, has strengthened the 
motives to diffidence of myself; and every day the increasing weight 
of years admonishes me more and more that the shade of retirement 
is as necessary as it will be welcome. Satisfied that if any circum¬ 
stances have given peculiar value to my services they are temporary, 
I have the consolation to believe that, while choice and prudence invite 
me to quit the political scene, patriotism does not forbid it. 

In looking forward to the moment which is intended to terminate 
the career of my political life my feelings do not permit me to suspend 
the deep acknowledgment of that debt of gratitude which I owet to my 
beloved country for the many honors conferred upon me; still more 
for the steady confidence with which it has supported me, and for 
the opportunities I have thence enjoyed of manifesting my inviolable 
attachment by services faithful and persevering, though in usefulness 
unequaled to my zeal. If benefits have resulted to our country from 
these services, let it always be remembered to your praise and as an 
instructive example in our annals that under circumstances in which 
the passions, agitated in every direction, were liable to mislead; amidst 
appearances sometimes dubious; vicissitudes of fortune often discour¬ 
aging; in situations in which not unfrequently want of success has 
countenanced the spirit of criticism, the constancy of your support was 
the essential prop of the efforts and a guaranty of the plans by which 
they were effected. Profoundly penetrated with this idea, I shall 
carry it with me to my grave as a strong incitement to unceasing vows 
that Heaven may continue to you the choicest tokens of its benefi¬ 
cence; that your union and brotherly affection may be perpetual; that 
the free Constitution which is the work of your hands may be sacredly 
maintained; that its administration in every department may be 
stamped with wisdom and virtue; that, in fine, the happiness of the 
people of these States, under the auspices of liberty, may be made 
complete by so careful a preservation and so prudent a use of this bless¬ 
ing as will acquire to them the glory of recommending it to the ap¬ 
plause, the affection, and adoption of every nation which is yet a 
stranger to it. 

Here, perhaps, I ought to stop. But solicitude for your welfare 
which can not end with my life, and the apprehension of danger 
natural at that solicitude, urge me on an occasion like the present to 
offer to your solemn contemplation and to recommend to your frequent 
review some sentiments which are the result of much reflection, of no 
inconsiderable observation, and which appear to me all important to 
the permanency of your felicity as a people. These will be offered to 
you with the more freedom as you can only see in them the disinter¬ 
ested warnings of a parting friend, who can possibly have no personal 
motive to bias his counsel. Nor can I forget as an encouragement to 
it your indulgent reception of my sentiments on a former and not 
dissimilar occasion. 

Interwoven as is the love of liberty with every ligament of your 
hearts, no recommendation of mine is necessary to fortify or confirm 
the attachment. 

The unity of government which constitutes you one people is also 
now dear to you. It is justly so, for it is a main pillar in the edifice 
of your real independence, the support of your tranquillity at home, 


300 


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your peace abroad, of your safety, of your prosperity, of that very 
liberty which you so highly prize. But as it is easy to foresee that 
from different causes and from different quarters much pains will be 
taken, many artifices employed, to weaken in your minds the con¬ 
viction of this truth, as this is the point in your political fortress 
against which the batteries of internal and external enemies will be 
most constantly and actively (though often covertly and insidiously) 
directed, it is of infinite moment that you should properly estimate the 
immense value of your national union to your collective and individual 
happiness; that you should cherish a cordial, habitual, and immovable 
attachment to it; accustoming yourselves to think and speak of it as 
of the palladium of your political safety and prosperity; watching for 
its preservation with jealous anxiety; discountenancing whatever may 
suggest even a suspicion that it can in any event be abandoned, and 
indignantly frowning upon the first dawning of every attempt to 
alienate any portion of our country from the rest or to enfeeble the 
sacred ties which now link together the various parts. 

For this you have every inducement or sympathy and interest. 
Citizens by birth or choice of a common country, that country has a 
right to concentrate your affections. The name of American, which 
belongs to you in your natural capacity, must always exalt the just 
pride of patriotism more than any appellation derived from local dis¬ 
criminations. With slight shades of difference, you have the same 
religion, manners, habits, and political principles. You have in a 
common cause fought and triumphed together. The independence and 
liberty you possess are the work of joint councils and joint efforts, of 
common dangers, sufferings, and successes. 

But these considerations, however powerfully they address them¬ 
selves to your sensibility, are greatly outweighed by those which apply 
more immediately to your interest. Here every portion of our coun¬ 
try finds the most commanding motives for carefully guarding and 
preserving the union of the whole. 

The North, in an unrestrained intercourse with the South, pro¬ 
tected by the equal laws of a common government, finds in the produc¬ 
tions of the latter great additional resources of maritime and commer¬ 
cial enterprise and precious materials of manufacturing industry. The 
South, in the same intercourse, benefiting by the same agency of the 
North, sees its agriculture grow and its commerce expand. Turning 
partly into its own channels.the seamen of the North, it finds its par¬ 
ticular navigation invigorated; and while it contributes in different 
ways to nourish and increase the general mass of the national naviga¬ 
tion, it looks forward to the protection of a maritime strength to which 
itself is unequally adapted. The East, in a like intercourse with the 
West, already finds, and in the progressive improvement of interior 
communications by land and water will more and more find, a valuable 
vent for the commodities which it brings from abroad or manufactures 
at home. The West derives from the East supplies requisite to its 
growth and comfort, and what is perhaps of still greater consequence, 
it must of necessity owe the secure enjoyment of indispensable outlets 
for its own productions to the weight, influence, and the future mari¬ 
time strength of the Atlantic side of the Union, directed by an indis¬ 
soluble community of interest as one nation. Any other tenure by 


Washington's Farewell Address 


301 


which the West can hold this essential advantage, whether derived 
from its own separate strength or from an apostate and unnatural con¬ 
nection with any foreign power, must be instrinsically precarious. 

While, then, every part of our country thus feels an immediate and 
particular interest in union, all the parts combined can not fail to 
find in the united mass of means and efforts greater strength, greater 
resource, proportionably greater security from external danger, a less 
frequent interruption of their peace by foreign nations; and what is 
of inestimable value, they must derive from union an exemption from 
those broils and wars between themselves which so frequently afflict 
neighboring countries not tied together by the same governments, 
which their own rivalships alone would be sufficient to produce, but 
which opposite foreign alliances, attachments, and intrigues would 
stimulate and embitter. Hence, likewise, they will avoid the necessity 
of those overgrown military establishments which, under any form of 
government, are inauspicious to liberty, and which are to be regarded 
as particularly hostile to republican liberty. In this sense it is that 
your union ought to be considered as a main prop of your liberty, and 
that the love of the one ought to endear to you the preservation of 
the other. 

These considerations speak a persuasive language to every reflect¬ 
ing and virtuous mind, and exhibit the continuance of the union as a 
primary object of patriotic desire. Is there a doubt whether a com¬ 
mon government can embrace so large a sphere? Let experience solve 
it. To listen to mere speculation in such a case were criminal. We 
are authorized to hope that a proper organization of the whole, with 
the auxiliary agency of governments for the respective subdivisions, 
will afford a happy issue to the experiment. It is well worth a fair 
and full experiment. With such powerful and obvious motives to 
union affecting all parts of our country, while experience shall not 
have demonstrated its impracticability, there will always be reason to 
distrust the patriotism of those who in any quarter may endeavor to 
weaken its bands. 

In contemplating the causes which may disturb our union it occurs 
as matter of serious concern that any ground should have been 
furnished for characterizing parties by geographical discriminations— 
Northern and Southern, Atlantic and Western —whence designing men 
endeavor to excite a belief that there is a real difference of local in¬ 
terests and views. One of the expedients of party to acquire influence 
within particular districts is to misrepresent the opinions and aims of 
other districts. You can not shield yourselves too much against the 
jealousies and heart-burnings which spring from these misrepresenta¬ 
tions; they tend to render alien to each other those who ought to be 
bound together by fraternal affection. The inhabitants of our Western 
country have lately had a useful lesson on this head. They have seen 
in the negotiation by the Executive and in the unanimous ratification 
by the Senate of the treaty with Spain, and in the universal satisfac¬ 
tion at that event throughout the United States, a decisive proof how 
unfounded were the suspicions propagated among them of a policy in 
the General Government and in the Atlantic States unfriendly to their 
interests in regard to the Mississippi. They have been witnesses to the 
formation of two treaties—that with Great Britain and that with Spain 


302 


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—which secure to them everything they could desire in respect to 
our foreign relations toward confirming their prosperity. Will it not 
be their wisdom to rely for the preservation of these advantages on 
the union by which they were procured? Will they not henceforth 
be deaf to those advisers, if such there are, who would sever them 
from their brethren and connect them with aliens? 

To the efficacy and permanency of your union a government for the 
whole is indispensable. No alliances, however strict, between the parts 
can be an adequate substitute. They must inevitably experience the 
infractions and interruptions which all alliances in all times have ex¬ 
perienced. Sensible of this momentous truth, you have improved upon 
your first essay by the adoption of a Constitution of Government bet¬ 
ter calculated than your former for an intimate union and for the 
efficacious management of your common concerns. This Government, 
the offspring of our own choice, uninfluenced and unawed, adopted 
upon full investigation and mature deliberation, completely free in its 
principles, in the distribution of its powers, uniting security with 
energy, and containing within itself a provision for its own amend¬ 
ment, has a just claim to your confidence and your support. Respect 
for its authority, compliance with its laws, acquiescence in its meas¬ 
ures, are duties enjoined by the fundamental maxims of true liberty. 
The basis of our political systems is the right of the people to make 
and to alter their constitutions of government. But the constitution 
which at any time exists till changed by an explicit and authentic act 
of the whole people is sacredly obligatory upon all. The very idea of 
the power and the right of the people to establish government pre¬ 
supposes the duty of every individual to obey the established gov¬ 
ernment. 

All obstructions to the execution of the laws, all combinations and 
associations, under whatever plausible character, with the real design 
to direct, counteract, or awe the regular deliberation and action of the 
constituted authorities, are destructive of this fundamental principle 
and of fatal tendency. They serve to organize faction; to give it an 
artificial and extraordinary force; to put in the place of the delegated 
will of the nation the will of a party, often a small but artful and enter¬ 
prising minority of the community, and, according to the alternate 
triumphs of different parties, to make the public administration the 
mirror of the ill-concerted and incongruous projects of faction rather 
than the organ of consistent and wholesome plans, digested by common 
counsels and modified by mutual interests. 

However combinations or associations of the above description may 
and now and then answer popular ends, they are likely in the course 
of time and things to become potent engines by which cunning, am¬ 
bitious, and unprincipled men will be enabled to subvert the power of 
the people, and to usurp for themselves the reins of government, de¬ 
stroying afterwards the very engines which have lifted them to un¬ 
just dominion. 

Toward the preservation of your Government and the permanency 
of your present happy state, it is requisite not only that you steadily 
discountenance irregular oppositions to its acknowledged authority, but 
also that you resist with care the spirit of innovation upon its prin¬ 
ciples however specious the pretexts. One method of assault may be to 
effect in the forms of the Constitution alterations which will impair 


Washington's Farewell Address 


303 


the energy of the system, and thus to undermine what can not be 
directly overthrown. In all the changes to which you may be invited 
remember that time and habit are at least as necessary to fix the true 
character of governments as of other human institutions; 'that expe¬ 
rience is the surest stay of a country; that facility in changes upon the 
credit of mere hypothesis and opinion exposes to perpetual change, 
from the endless variety of hypothesis and opinion; and remember 
especially that for the efficient management of your common interests 
in a country so extensive as ours a government of as much vigor as is 
consistent with the perfect security of liberty is indispensable. Liberty 
itself will find in such a government, with powers properly distributed 
and adjusted, its surest guardian. It is, indeed, little else than a name 
where the government is too feeble to withstand the enterprises of 
faction, to confine each member of the society within the limits pre¬ 
scribed by the laws, and to maintain all in the secure and tranquil 
enjoyment of the rights of person and property. 

I have already intimated to you the danger of parties in the State, 
with particular reference to the founding of them on geographical dis¬ 
criminations. Let me now take a more comprehensive view, and warn 
you in the most solemn manner against the baneful effects of the spirit 
of party generally. 

This spirit, unfortunately, is inseparable from our nature, having 
its root in the strongest passions of the human mind. It exists under 
different shapes in all governments, more or less stifled, controlled, or 
repressed; but in those of the popular form it is seen in its greatest 
rankness and is truly their worst enemy. 

The alternate domination of one faction over another, sharpened by 
the spirit of revenge natural to party discussion, which in different 
ages and countries has perpetrated the most horrid animosities, is itself 
a frightful despotism. But this leads at length to a more formal and 
permanent despotism. The disorders and miseries which result grad¬ 
ually incline the minds of men to seek security and repose in the abso¬ 
lute power of an individual, and sooner or later the chief of some 
prevailing faction, more able or more fortunate than his competitors, 
turns this disposition to the purposes of his own elevation on the ruins 
of public liberty. 

Without looking forward to an extremity of this kind (which never¬ 
theless ought not to be entirely out of sight), the common and con¬ 
tinual mischiefs of the spirit of party are sufficient to make it the in¬ 
terest and duty of a wise people to discourage and restrain it. 

It serves always to distract the public councils and enfeebles the 
public administration. It agitates the community with ill-founded 
jealousies and false alarms; kindles the animosity of one part against 
another; foments occasionally riot and insurrection. It opens the door 
to foreign influence and corruption, which find a facilitated access to 
the government itself through the channels of party passion. Thus 
the policy and the will of one country are subject to the policy and 
will of another. 

There is an opinion that parties in free countries are useful checks 
upon the administration of the government, and serve to keep alive 
the spirit of liberty. This within certain limits is probably true; 
and in governments of a monarchical cast patriotism may look with 
indulgence, if not with favor, upon the spirit of party. But in those 


304 


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of the popular character, in governments purely elective, it is a spirit 
not to be encouraged. From their natural tendency it is certain there 
will always be enough of that spirit for every salutary purpose; and 
there being constant danger of excess, the effort ought to be by force 
of public opinion to mitigate and assuage it. A fire not to be 
quenched, it demands a uniform vigilance to prevent its bursting into a 
flame, lest, instead of warming, it should consume. 

It is important, likewise, that the habits of thinking in a free coun¬ 
try should inspire caution in those intrusted with its administration 
to confine themselves within their respective constitutional spheres, 
avoiding in the exercise of the powers of one department to encroach 
upon another. The spirit of encroachment tends to consolidate the 
powers of all the departments in one, and thus to create, whatever the 
form of government, a real despotism. A just estimate of that love 
of power and proneness to abuse it which predominates in the human 
heart is sufficient to satisfy us of the truth of this position. The neces¬ 
sity of reciprocal checks in the exercise of political power, by dividing 
and distributing it into different depositories, and constituting each 
guardian of the public weal against invasions by the others, has 
been evinced by experiments ancient and modern, some of them in 
our country and under our own eyes. To preserve them must be as 
necessary as to institute them. If in the opinion of the people the 
distribution or modification of the constitutional powers be in any 
particular wrong, let it be corrected by an amendment in the way 
which the Constitution designates. But let there be no change by 
usurpation; for though this in one instance may be the instrument of 
good, it is the customary weapon by which free governments are de¬ 
stroyed. The precedent must always greatly overbalance in perma¬ 
nent evil any particular or transient benefit which the use can at any 
time yield. 

Of all the dispositions and habits which lead to political prosperity, 
religion and morality are indispensable supports. In vain would that 
man claim the tribute of patriotism who would labor to subvert these 
great pillars of human happiness—these firmest props of the duties of 
men and citizens. The mere politician, equally with the pious man, 
ought to respect and to cherish them. A volume could not trace all 
their connections with private and public felicity. Let it simpiy be 
asked, Where is the security for property, for reputation, for life, if 
the sense of religious obligation desert the oaths which are the instru¬ 
ments of investigation in courts of justice? And let us with caution 
indulge the supposition that morality can be maintained without re¬ 
ligion. Whatever may be conceded to the influence of refined educa¬ 
tion on minds of peculiar structure, reason and experience both forbid 
us to expect that national morality can prevail in exclusion of re¬ 
ligious principle. 

It is substantially true that virtue or morality is a necessary spring 
of popular government. The rule extends with more or less force 
to every species of free government. Who that is a sincere friend to 
it can look with indifference upon attempts to shake the foundation 
of the fabric? Promote, then, as an object of primary importance, in¬ 
stitutions for the general diffusion of knowledge. In proportion as 
the structure of a government gives force to public opinion, it is essen¬ 
tial that public opinion should be enlightened. 


Washington’s Farewell Address 


305 


As a very important source of strength and security, cherish pub¬ 
lic credit. One method of preserving it is to use it as sparingly as 
possible, avoiding occasions of expense by cultivating peace, but re¬ 
membering also that timely disbursements to prepare for danger fre¬ 
quently prevent much greater disbursements to dispel it; avoiding 
likewise the accumulation of debt, not only by shunning occasions of 
expense, but by vigorous exertions in time of peace to discharge the 
debts which unavoidable wars have occasioned, not ungenerously 
throwing upon posterity the burthen which we ourselves ought to bear. 
The execution of these maxims belongs to your representatives; but it 
is necessary that public opinion should co-operate. To facilitate to 
them the performance of their duty it is essential that you should 
practically bear in mind that toward the payment of debts there must 
be revenue; that to have revenue there must be taxes; that no taxes 
can be devised which are not more or less inconvenient and unpleas¬ 
ant; that the intrinsic embarrassment inseparable from the selection 
of the proper objects (which is always a choice of difficulties), ought 
to be a decisive motive for a candid construction of the conduct of the 
Government in making it, and for a spirit of acquiescence in the meas¬ 
ures for obtaining revenue which the public exigencies may at any 
time dictate. 

Observe good faith and justice toward all nations. Cultivate peace 
and harmony with all. Religion and morality enjoin this conduct. 
And can it be that good policy does not equally enjoin it? It will be 
worthy of a free, enlightened, and at no distant period a great nation 
to give to mankind the magnanimous and too novel example of a people 
always guided by an exalted justice and benevolence. Who can doubt 
that in the course of time and things the fruits of such a plan would 
richly repay any temporary advantages which might be lost by a 
steady adherence to it? Can it be that Providence has not connected 
the permanent felicity of a nation with its virtue? The experiment, at 
least, is recommended by every sentiment which ennobles human 
nature. Alas! is it rendered impossible by its vices? 

In the execution of such a plan nothing is more essential than that 
permanent, inveterate antipathies against particular nations and pas¬ 
sionate attachments for others should be excluded, and that in place 
of them just and amicable feelings toward all should be cultivated. 
The nation which indulges toward another an habitial hatred or an 
habitual fondness is in some degree a slave. It is a slave to its ani¬ 
mosity or to its affection, either of which is sufficient to lead it astray 
from its duty and its interest. Antipathy in one nation against another 
disposes each more readily to offer insult and injury, to lay hold of 
slight causes of umbrage, and to be haughty and intractable when 
accidental or trifling occasions of dispute occur. 

Hence frequent collisions, obstinate, envenomed, and bloody con¬ 
tests. The nation prompted by ill will and resentment sometimes 
impels to war the government contrary to the best calculations of 
policy. The government sometimes participates in the national pro¬ 
pensity, and adopts through passion what reason would reject. At 
other times it makes the animosity of the nation subservient to pro¬ 
jects of hostility, instigated by pride, ambition, and other sinister and 
pernicious motives. The peace, often, sometimes perhaps the liberty 
of nations has been the victim. 


306 


Washington's Farewell Address 


So, likewise, a passionate attachment of one nation for another 
produces a variety of evils. Sympathy for the favorite nation, facili¬ 
tating the illusion of an imaginary common interest in cases where no 
real common interest exists, and infusing into one the enmities of the 
other, betrays the former into a participation in the quarrels and wars 
of the latter without adequate inducement or justification. It leads 
also to concessions to the favorite nation of privileges denied to others, 
which is apt doubly to injure the nation making the concessions by un¬ 
necessarily parting with what ought to have been retained, and by 
exciting jealousy, ill will, and a disposition to retaliate in the parties 
from whom equal privileges are withheld; and it gives to ambitious, 
corrupted, or deluded citizens (who devote themselves to the favorite 
nation) facility to betray or sacrifice the interests of their own coun¬ 
try without odium, sometimes even with popularity, gilding with the 
appearances of a virtuous sense of obligation, a commendable deference 
for public opinion, or a laudable zeal for public good the base or fool¬ 
ish compliances or ambition, corruption, or infatuation. 

As avenues to foreign influence in innumerable ways, such attach¬ 
ments are particularly alarming to the truly enlightened and inde¬ 
pendent patriot. How many opportunities do they afford to tamper 
with domestic factions, to practice the arts of seduction, to mislead 
public opinion, to influence or awe the public councils! Such an at¬ 
tachment of a small or weak toward a great and powerful nation dooms 
the former to be the satellite of the latter. Against the insidious wiles 
of foreign influence (I conjure you to believe me, fellow citizens) the 
jealousy of a free people ought to be constantly awake, since history 
and experience prove that foreign influence is one of the most baneful 
foes of republican government. But that jealousy, to be useful, must 
be impartial, else it becomes the instrument of the very influence to be 
avoided, instead of a defense against it. Excessive partiality for one 
foreign nation and excessive dislike of another cause those whom they 
actuate to see danger only on one side, and serve to veil and even sec¬ 
ond the arts of influence on the other. Real patriots who may resist 
the intrigues of the favorite are liable to become suspected and odious, 
while its tools and dupes usurp the applause and confidence of the 
people to surrender their interests. 

The great rule of conduct for us to regard to foreign nations is, 
in extending our commercial relations to have with them as little 
political connection as possible. So far as we have already formed 
engagements let them be fulfilled with perfect good faith. Here let 
us stop. 

Europe has a set of primary interests which to us have none or a 
very remote relation. Hence she must be engaged in frequent contro¬ 
versies, the causes of which are essentially foreign to our concerns. 
Hence, therefore, it must be unwise in us to implicate ourselves by 
artificial ties in the ordinary vicissitudes of her politics or the ordinary 
combinations and collisions of her friendships or enmities. 

Our detached and distant situation invites and enables us to pursue 
a different course. If we remain one people, under an efficient govern¬ 
ment, the period is not far off when we may defy material injury from 
external annoyance; when we may take such an attitude as will cause 
the neutrality we may at any time resolve upon to be scrupulously re¬ 
spected; when belligerent nations, under the impossibility of making 


Washington's Farewell Address 


307 


acquisitions upon us, will not lightly hazard the giving us provoca¬ 
tion; when we may choose peace or war, as our interest, guided by 
justice, shall counsel. 

Why forego the advantages of so peculiar a situation? Why quit 
our own to stand upon foreign ground? Why, by interweaving our 
destiny with that of any part of Europe, entangle our peace and pros¬ 
perity in the toils of European ambition, rivalship, interest, humor 
or caprice? 

It is our true policy to steer clear of permanent alliances with any 
portion of the foreign world, so far, I mean, as we are now at liberty to 
do it; for let me not be understood as capable of patronizing infidelity 
to existing engagements. I hold the maxim no less applicable to public 
than to private affairs that honesty is always the best policy. I re¬ 
peat, therefore, let those engagements be observed in their genuine 
sense. But in my opinion it is unnecessary and would be unwise to 
extend them. 

Taking care always to keep ourselves by suitable establishments on 
a respectable defensive posture, we may safely trust to temporary 
alliances for extraordinary emergencies. 

Harmony, liberal intercourse with all nations are recommended by 
policy, humanity, and interest. But even our commercial policy should 
hold an equal and impartial hand, neither seeking nor granting ex¬ 
clusive favors or preferences; consulting the natural course of things; 
diffusing and diversifying by gentle means the streams of commerce, 
but forcing nothing; stablishing with powers so disposed, in order to 
give trade a stable course, to define the rights of our merchants, and 
to enable the Government to support them, conventional rules of in¬ 
tercourse, the best that present circumstances and mutual opinion will 
permit, but temporary and liable to be from time to time abandoned 
or carried as experience and circumstances shall dictate; constantly 
keeping in view that it is folly in one nation to look for disinterested 
favors from another; that it must pay with a portion of its independ¬ 
ence for whatever it may accept under this character; that by such 
acceptance it may place itself in the condition of having given equiva¬ 
lents for nominal favors, and yet of being reproached with ingrati¬ 
tude for not giving more. There can be no greater error than to 
expect or calculate upon real favors from nation to nation. It is an 
illusion which experience must cure, which a just pride ought to 
discard. 

In offering to you, my countrymen, these counsels of an old and 
affectionate friend I dare not hope they will make the strong and last¬ 
ing impression I could wish—that they will control the usual current 
of the passions or prevent our nation from running the course which 
has hitherto marked the destiny of nations. But if I may even flatter 
myself that they may be productive of some partial benefit, some oc¬ 
casional good—that they may now and then recur to moderate the fury 
of party spirit, to warn against the mischiefs of foreign intrigue, to 
guard against the impostures of pretended patriotism—this hope will 
be a full recompense for the solicitude for your welfare by which they 
have been dictated. 

How far in the discharge of my official duties I have been guided 
by the principles which have been delineated the public records and 


308 


Jefferson’s First Inaugural Address 


other evidences of my conduct must witness to you and to the world. 
To myself, the assurance of my own conscience is that I have at least 
believed myself to be guided by them. 

In relation to the still subsisting war in Europe my proclamation 
of the 22d of April, 1793, is the index to my plan. Sanctioned by your 
approving voice and by that of your representatives in both Houses of 
Congress, the spirit of that measure has continually governed me, unin¬ 
fluenced by any attempts to deter or divert me from it. 

After deliberate examination, with the aid of the best lights I could 
obtain, I was well satisfied that our country, under all the circum¬ 
stances of the case, had a right to take, and was bound in duty and in¬ 
terest to take, a neutral position. Having taken it, I determined as far 
as should depend upon me to maintain it with moderation, perseverance 
and firmness. 

The considerations which respect the right to hold this conduct it is 
not necessary on this occasion to detail. I will only observe that, ac¬ 
cording to my understanding of the matter, it has been virtually ad¬ 
mitted by all. 

The duty of holding a neutral conduct may be inferred, without 
anything more, from the obligation which justice and humanity impose 
on every nation, in cases in which it is free to act, to maintain in¬ 
violate the relations of peace and amity toward other nations. 

The inducements of interest for observing that conduct will best 
be referred to your own reflections and experience. With me a pre¬ 
dominant motive has been to endeavor to gain t,ime to our country to 
settle and mature its yet recent institutions, and to progress without 
interruption to that degree of strength and consistency which is neces¬ 
sary to give it, humanly speaking, the command of its own fortunes. 

Though in reviewing the incidents of my Administration I am un¬ 
conscious of intentional error, I am nevertheless too sensible of my 
defects not to think it probable that I may have committed many errors. 
Whatever they may be, I fervently beseech the Almighty to avert or 
mitigate the evils to which they may tend. I shall also carry with me 
the hope that my country will never cease to view them with indul¬ 
gence, and that, after forty-five years of my life dedicated to its service 
with an upright zeal, the faults of incompetent abilities will be con¬ 
signed to oblivion, as myself must soon be to the mansions of rest. 

Relying on its kindness in this as in other things, and actuated by 
that fervent love toward it which is so natural to a man who views in 
it the native soil of himself and his progenitors for several generations, 
I anticipate with pleasing expectation that retreat in which I promise 
myself to realize without alloy the sweet enjoyment of partaking in 
the midst of my fellow-citizens the benign influence of good laws under 
a free government—the ever-favorite object of my heart, and the happy 
reward, as I trust, of our mutual cares, labors, and dangers. 

GEORGE WASHINGTON. 

First Inaugural Address of Thomas Jefferson 

Friends and Fellow-Citizens: 

Called upon to undertake the duties of the first executive office of 
our country, I avail myself of the presence of that portion of my fellow- 
citizens which is here assembled to express my grateful thanks for the 
favor with which they have been pleased to look toward me, to declare 


Jefferson's First Inaugural Address 309 

a sincere consciousness that the task is above my talents, and that I 
approach it with those anxious and awful presentments which the 
greatness of the charge and the weakness of my powers so justly in¬ 
spire. A rising nation, spread over a wide and fruitful land, traversing 
all the seas with the rich productions of their industry, engaged in 
commerce with nations who feel power and forget right, advancing 
rapidly to destinies beyond the reach of mortal eye—when I contem¬ 
plate these transcendent objects, and see the honor, the happiness, 
and the hopes of this beloved country committed to the issue and the 
auspices of this day, I shrink from the contemplation, and humble my¬ 
self before the magnitude of the undertaking. Utterly, indeed, should 
I despair did not the presence of many whom I here see remind me 
that in the other high authorities provided by our Constitution I shall 
find resources of wisdom, of virtue, and of zeal on which to rely under 
all difficulties. To you, then, gentlemen, who are charged with the 
sovereign functions of legislation, and to those associated with you, I 
look with encouragement for that guidance and support which may 
enable us to steer with safety the vessel in which we are all embarked 
amidst the conflicting elements of a troubled world. 

During the contest of opinion through which we have passed the 
animation of discussions and of exertions has sometimes worn an aspect 
which might impose on strangers unused to think freely and to speak 
and to write what they think; but this being now decided by the voice 
of the nation, announced according to the rules of the Constitution, all 
will, of course, arrange themselves under the will of the law, and unite 
in common efforts for the common good. All, too, will bear in mind 
this sacred principle, that though the will of the majority is in all 
cases to prevail that will to be rightful must be reasonable; that the 
minority possess their equal rights, which equal law must protect, and 
to violate would be oppression. Let us, then, fellow-citizens, unite with 
one heart and one mind. Let us restore to social intercourse that har¬ 
mony and affection without which liberty and even life itself are but 
dreary things. And let us reflect that, having banished from our land 
that religious intolerance under which mankind so long bled and suf¬ 
fered, we have yet gained little if we countenance a political intol¬ 
erance as despotic, as wicked, and capable of as bitter and bloody per¬ 
secutions. During the throes and convulsions of the ancient world, 
during the agonizing spasms of infuriated men, seeking through blood 
and slaughter his long-lost liberty, it was not wonderful that the agita¬ 
tion of the billows should reach even this distant and peaceful shore; 
that this should be more felt and feared by some and less by others, 
and should divide opinions as to measures of safety. But every dif¬ 
ference of opinion is not a difference of principle. We are all Re¬ 
publicans, we are all Federalists. If there be any among us who would 
wish to dissolve this Union or to change its republican form, let them 
stand undisturbed as monuments of the safety with which error of opin¬ 
ion may be tolerated where reason is left free to combat it. I know, 
indeed, that some honest men fear that republican government can not 
be strong, that this Government is not strong enough; but would the 
honest patriot, in the full tide of successful experiment, abandon a gov¬ 
ernment which has so far kept us free and firm on the theoretic and 
visionary fear that this Government, the world’s best hope, may by 
possibility want energy to preserve itself? I trust not. I believe this. 


310 


Jefferson’s First Inaugural Address 

on the contrary, the strongest Government on earth. I believe it the 
only one where every man, at the call of the law, would fly to the 
standard of the law, and would meet invasions of the public order as 
his own personal concern. Sometimes it is said that man can not be 
trusted with a government of himself. Can he, then, be trusted with 
the government of others? Or have we found angels in the forms of 
kings to govern him? Let history answer this question. 

Let us, then, with courage and confidence pursue our own Federal 
and Republican principles, our attachment to union and representative 
government. Kindly separated by nature and a wide ocean from the 
exterminating havoc of one quarter of the globe; too high-minded to 
endure the degradation of the others; possessing a chosen country, with 
room enough for our descendants to the thousandth and thousandth 
generation; entertaining a due sense of our equal right to the use of 
our own faculties, to the acquisitions of our own industry, to honor 
and confidence from our fellow-citizens, resulting not from birth, but 
from our actions and our sense of thpm; enlightened by a benign re¬ 
ligion, professed, indeed, and practiced in various forms, yet all of them 
inculcating honesty, truth, temperance, gratitude, and love of man; 
acknowledging and adoring an overruling Providence, which by all its 
dispensations proves that it delights in the happiness of man and his 
greater happiness hereafter—with all these blessings, what more is 
necessary to make us a happy and a prosperous people? Still one 
thing more, fellow-citizens—a wise and frugal Government, which shall 
restrain men from injuring one another, shall leave them otherwise 
free to regulate their own .pursuits of industry and improvement, and 
shall not take from the mouth of labor the bread it has earned. This 
is the sum of good government, and this is necessary to close the circle 
jof our felicities. 

About to enter, fellow-citizens, on the exercise of duties which com¬ 
prehend everything dear and valuable to you, it is proper you should 
understand what I deem the essential principles of our Government, 
and consequently those which ought to shape its Administration. I 
will compress them within the narrowest compass they will bear, stat¬ 
ing the general principle, but not all its limitations. Equal and exact 
justice to all men, of whatever state or persuasion, religious or politi¬ 
cal; peace, commerce, and honest friendship with all nations, entan¬ 
gling alliances with none; the support of the State Governments in all 
their rights, as the most competent administrations for our domestic 
concerns and the surest bulwarks against anti-republican tendencies; 
the preservation of the General Government in its whole constitutional 
vigor, as the sheet anchor of our peace at home and safety abroad; a 
jealous care of the right of election by the people—a mild and safe 
corrective of abuses which are lopped by the sword of revolution where 
peaceable remedies are unprovided; absolute acquiescence in the decis¬ 
ions of the majority, the vital principle of republics, from which is no 
appeal but to force, the vital principle and immediate parent of despot¬ 
ism; a well disciplined militia, our best reliance in peace and for the 
first moments of war, till regulars may relieve them; the supremacy 
of the civil over the military authority; economy in the public expense, 
that labor may be lightly burthened; the honest payment of our debts 
and sacred preservation of the public faith; encouragement of agri¬ 
culture, and of commerce as its handmaid; the diffusion of information 


The Monroe Doctrine 


311 


and arraignment of all abuses at the bar of the public reason; freedom 
of religion; freedom of the press, and freedom of person under the pro¬ 
tection of the habeas corpus, and trial by juries impartially selected. 
These principles form the bright constellation which has gone before 
us and guided our steps through an age of revolution and reformation. 
The wisdom of our sages and blood of our heroes have been devoted t6 
their attainment. They should be the creed of our political faith, the 
text of civic instruction, the touchstone by which to try the services 
of those we trust; and should we wander from them in moments of 
error or of alarm, let us hasten to retrace our steps and to regain the 
road which alone leads to peace, liberty and safety. 

I repair, then, fellow-citizens, to the post you have assigned me. 
With experience in subordinate offices to have seen the difficulties of 
this the greatest of all, I have learnt to expect that it will rarely fall 
to the lot of the imperfect man to retire from this station with the 
reputation and the favor which bring him into it. Without pretensions 
to that high confidence you reposed in our first and greatest revolution¬ 
ary character, whose pre-eminent, services had entitled him to the first 
place in his country’s love and destined for him the fairest page in 
the volume of faithful history, I ask so much confidence only as may 
give firmness and effect to the legal administration of your affairs. I 
shall often go wrong through defect of judgment. When right, I shall 
often be thought wrong by those whose positions will not command a 
view of the whole ground. I ask your indulgence for my own errors, 
which will never be intentional, and your support against the errors of 
others, who may condemn what they would not if seen in all its parts. 
The approbation implied by your suffrage is a great consolation to me 
for the past, and my future solicitude will be to retain the good opinion 
of those who have bestowed it in advance, to conciliate that of others by 
doing them all the good in my power, and to be instrumental to the 
happiness and freedom of all. 

Relying, then, on the patronage of your good will, I advance with 
obedience to the work, ready to retire from it whenever you become 
sensible how much better choice it is in your power to make. And may 
that Infinite Power which rules the destinies of the universe lead our 
councils to what is best, and give them a favorable issue for your peace 
and prosperity. 

March 4, 1801. 

The Monroe Doctrine 

The Monroe Doctrine as first authentically announced must 
be gathered from the Presidential messages of President Mon¬ 
roe, one delivered December 2, 1823, and the other December 
7, 1824. 

These messages were to declare the policy of the United 
States, as to its relation to and connection with all European 
nations. The grave question was as to whether or not the 
United States should join or become a part of the Holy 
Alliance, or whether it should resist the attempts of the alliance 
or its members of further colonizing America. Great Britain 
had refused to join the alliance and was determined to resist 


312 


The Monroe Doctrine 


the aggressions of the Holy Alliance in Europe, and the United 
States determined to pursue a similar course as to this hemis¬ 
phere, and this declaration therefore made England and Amer¬ 
ica allies against the Holy Alliance. 

The Declaration of President Monroe of December 2, 1823, 
which first announced the Monroe Doctrine dealt with terri¬ 
tory in the northwestern part of America, which both Russia 
and England were claiming and which dispute was ultimately 
settled by treaties; the doctrine was announced that neither 
Russia nor England should further extend colonization in the 
northern part of America. The doctrine also dealt with Cen¬ 
tral and Southern America, as to which France, through the 
Holy Alliance, was attempting to acquire control over Spain’s 
possessions in America. England of course was jealous of all 
other European powers and gladly joined with the United 
States in declaring and upholding the Monroe Doctrine as 
against the European alliance in all Central and South Ameri¬ 
can countries. England, however, declined to join with Amer¬ 
ica in acknowledging the absolute independence of all Spanish 
American Republics, England’s idea was that these Spanish 
American Republics should be controlled and ultimately di¬ 
vided between herself and the United States. To this the 
United States would not agree, and declined to enter into any 
such agreement with England that bound the United States to 
take part in any of her wars or troubles or politics with other 
European powers. England was for the Monroe Doctrine, pro¬ 
vided it did not apply to her. To prevent the Holy Alliance 
from acquiring power or control of American territory she was 
more than willing, but she was not willing to declare the inde¬ 
pendence of Spanish American Republics, nor to foreclose her¬ 
self from control or authority as to Central or South American 
countries. 

The Monroe Doctrine is to America what the Balance of 
Power Doctrine is to Europe. The difference in the doctrines, 
however, is very great,—as different as is the republican form 
of government from monarchical and despotic forms of gov¬ 
ernment, as different as liberty from tyranny. 

The Monroe Doctrine “boiled” down is non-intervention by 
America in European affairs; and non-intervention of Europe 
in American affairs. It declares that the United States will 
never inter-meddle with European affairs, and that no Euro¬ 
pean government shall ever inter-meddle with American af¬ 
fairs. It is a patriotic declaration of a patriotic principle. 


# 


The Monroe Doctrine 313 

The Balance of Power Doctrine is to divide all great Euro¬ 
pean powers into two great factions or alliances, so that each 
faction may prevent the other faction from colonizing or con¬ 
trolling the small or unimportant countries, nations or people. 
Each alliance is, however, always attempting to colonize, pos¬ 
sess or control every small nation, country or people, and thus 
add to its superior power, force and numbers: but at the same 
time it denies the right of the other alliance or any of its mem¬ 
bers the same right, and denies the right of any small or unim¬ 
portant country, nation or people to form an alliance with the 
opposite alliance. 

The object and purpose of the Monroe Doctrine is to preserve 
peace, and prevent war between European and American coun¬ 
tries, and to teach and cherish patriotism among all nations. 
The object and purpose of the Balance of Power Doctrine is to 
promote war and to destroy all patriotism among all Euro¬ 
pean nations. 

Mr. Jefferson well stated the difference. The Monroe 
Doctrine, or the American Doctrine, seeks to establish freedom 
for all America: while the Balance of Power, or the European 
Doctrine, seeks to prevent freedom, and to establish and to 
perpetuate despotic governments. 

The following excerpts from President Monroe’s message to 
Congress on the second of December 1823, contain the gist of 
the doctrine, and the conditions that led to the necessity of an¬ 
nouncing it. After reciting the facts as to the proposals of the 
Russian government to the United States and to Great Britain 
as to the respective interests and rights of the three countries 
to territory in the northwestern part of America, the president 
said: 

In the discussions to which this interest has given rise, and in the 
arrangements by which they may terminate, the occasion has been 
judged proper for asserting, as a principle in which the rights and in¬ 
terests of the United States are involved, that the American continents, 
by the free and independent condition which they have assumed and 
maintained, are henceforth not to be considered as subjects for future 
colonization by any European powers. 

Further in the message, he refers to conditions in Portugal 
and Spain, where he says: 

The citizens of the United States cherish sentiments the most 
friendly in favor of the liberty and happiness of their fellow-men on 
that side of the Atlantic. In the wars of the European powers, in mat¬ 
ters relating to themselves we have never taken any part, nor does it 
comport with our policy so to do. It is only when our rights are in- 


314 


• 

The Monroe Doctrine 

vaded or seriously menaced that we resent injuries or make prepara¬ 
tion for our defense. With the movements in this hemisphere we are, 
of necessity, more immediately connected, and by causes which must 
be obvious to all enlightened and impartial observers. The political 
system of the Allied Powers is essentially different in this respect from 
that of America. This difference proceeds from that which exists in 
their respective Governments. And to the defence of our own, which 
has been achieved by the loss of so much blood and treasure, and 
matured by the wisdom of their most enlightened citizens, and under 
which we have enjoyed unexampled felicity, this whole nation is de¬ 
voted. We owe it, therefore, to candor, and to the amicable relations 
existing between the United States and those Powers, to declare that 
we should consider any attempt on their part to extend their system to 
any portion of the hemisphere as dangerous to our peace and safety. 
With the existing colonies or dependencies of any European power we 
have not interfered and shall not interfere; but with the Governments 
who have declared their independence and maintained it, and whose 
independence we have on great consideration and on just principles 
acknowledged, we could not view any interposition for the purpose of 
oppressing them, or controlling in any other manner their destiny, by 
any European power, any other light than as the manifestation of 
an unfriendly disposition toward the United States. In the war be¬ 
tween those new Governments and Spain we declared our neutrality at 
the time of their recognition, and to this we have adhered, and shall 
continue to adhere, provided no change shall occur which, in the judg¬ 
ment of the competent authorities of this Government, shall make a 
corresponding change on the part of the United States indispensable 
to their security. . . . 

Our policy in regard to Europe, which was adopted at an early stage 
of the wars which have so long agitated that quarter of the globe, nev¬ 
ertheless remains the same, which is, not to interfere in the internal 
concerns of any of its Powers; to consider the government de facto 
as the legitimate government for us; to cultivate friendly relations with 
it, and to preserve those relations by a frank, firm, and manly policy; 
meeting, in all instances, the just claims of every Power, submitting to 
injuries from none. But in regard to these continents circumstances 
are eminently and conspicuously different. It is impossible that the 
Allied Powers should extend their political system to any portion of 
either continent without endangering our peace and happiness; nor can 
anyone believe that our Southern brethren, if left to themselves, would 
adopt it of their own accord. It is equally impossible, therefore, that 
we should behold such interposition, in any form, with indifference. 
If we look to the comparative strength and resources of Spain and 
these new Governments, and their distance from each other, it must be 
obvious that she can never subdue them. It is still the true policy of 
the United States to leave the parties to themselves, in the hope that 
other Powers will pursue the same course. 

Then again, in a message a year later, December 7, 1824, the 
President referred to the same conditions and redeclared the 
policy as follows: 

Separated, as we are, from Europe by the great Atlantic Ocean, we 
can have no concern in the wars of the European Governments, nor in 


The Monroe Doctrine 


315 


the causes which produce them. The balance of power between them, 
into whichever scale it may turn in its various vibrations, cannot affect 
us. It is the interest of the United States to preserve the most friendly 
relations with every Power, and on conditions fair, equal, and appli¬ 
cable to all. But in regard to our neighbors our situation is different. 
It is impossible for the European Governments to interfere in their 
concerns, especially in those alluded to which are vital, without such 
interference in the present state of the war between the parties, if a 
war it may be called, would appear to be equally applicable to us. It is 
gratifying to know that some of the Powers with whom we enjoy a 
very friendly intercourse, and to whom these views have been com¬ 
municated, have appeared to acquiesce in them. 

In the opinion of the writer, the Monroe Doctrine was bet¬ 
ter expressed by Mr. Jefferson, in his letter to President Mon¬ 
roe who had requested his advice on the subject, than was ever 
done before or since. In other words, the concensus of opin¬ 
ion as to what the Monroe Doctrine was, is expressed best 
by Mr. Jefferson in this letter, and the president admits that he 
was following the advice of Jefferson and Madison when he 
declared the doctrine. The following excerpts from that let¬ 
ter are interesting and instructive: 

To the President of the United States 
(James Monroe). 

Monticello, October 24, 1823. 

Dear Sir:-^-The question presented by the letters you have sent me, 
is the most momentous which has ever been offered to my contempla¬ 
tion since that of Independence. That made us a nation, this sets our 
compass and points the course which we are to steer through the ocean 
of time opening on us. And never could we embark on it under cir¬ 
cumstances more auspicious. Our first and fundamental maxim should 
be, never to entangle ourselves in the broils of Europe. Our second, 
never to suffer Europe to intermeddle with cis-Atlantic affairs. Ameri¬ 
ca, North and South, has a set of interests distinct from those of Eu¬ 
rope, and peculiarly her own. She should therefore have a system of 
her own, separate and apart from that of Europe. While the last is la¬ 
boring to become the domicile of despotism, our endeavor should surely 
be, to make our hemisphere that of freedom. ... Its object is to 
introduce and establish the American system, of keeping out of our 
land all foreign powers, of never permitting those of Europe to inter¬ 
meddle with the affairs of our nation. It is to maintain our own 
principles, not to depart from it. And, if, to facilitate this, we can 
effect a division in the body of the European powers, and draw over to 
our side its most powerful member, surely we should do it. . . . I 

have been so long weaned from political subjects, and have so long 
ceased to take any interest in them, that I am sensible I am not quali¬ 
fied to offer opinions on them worthy of any attention. But the ques¬ 
tion now proposed involves consequences so lasting, and effects so 
decisive of our future destinies, as to rekindle all the interest I have 
heretofore felt on such occasions, and to induce me to the hazard of 
opinions, which will prove only my wish to contribute still my mite 


316 


The Monroe Doctrine 


towards anything which may be useful to our country. And praying 
you to accept it at only what it is worth, I add the assurance of my 
constant and affectionate friendship and respect. 

This letter was written after Mr. Jefferson was eighty years 
of age, and within less than three years before his death which 
occurred July 4, 1826: John Adams died the same day: it being 
fifty years to a day after the signing of the Declaration of In¬ 
dependence—to which he refers in the above letter. It is 
worthy to be remembered that Jefferson, Adams, and Franklin 
constituted the committee which drafted the Declaration of 
Independence,—nearly all of it, however, was drafted by Mr. 
Jefferson. 

The following excerpts from Mr. Madison’s letters to Presi¬ 
dent Monroe are answers to the request of the president that 
he be advised on the subject by his two predecessors in office, 
and show that Mr. Madison and Mr. Jefferson advised with 
each other before advising the president, and that the presi¬ 
dent put before them the papers and letters relating to the 
communications which had passed between the ministers of 
other governments and our own on the subject. Among other 
things, Mr. Madison said: 

To President Monroe. 

October 30, 1823. 

Dear Sir:—I have just received from Mr. Jefferson your letter to 
him, with the correspondence between Mr. Canning and Mr. Rush, sent 
for his and my perusal, and our opinions on the subject of it. 

From the disclosure of Mr. Canning it appears, as was otherwise to 
be inferred, that the success of France against Spain would be followed 
by an attempt of the Holy allies to reduce the revolutionized colonies 
of the latter to their former dependence. 

The professions we have made to these neighbors, our sympathies 
with their liberties and independence, the deep intrest we have in 
the most friendly relations with them, and the consequences threatened 
by a command of their resources by the Great Powers, confederated 
against the rights and reforms of which we have given so conspicuous 
and persuasive an example, all unite in calling for our efforts to defeat 
the meditated crusade. It is particularly fortunate that the policy of 
Great Britain, though guided by calculations different from ours, has 
presented a co-operation for an object the same wtih ours. With that 
co-operation we have nothing to fear from the rest of Europe, and with 
it the best assurance of success to our laudable views. There ought 
not, therefore, to be any backwardness, I think, in meeting her in the 
way she has proposed; keeping in view, of course, the spirit and forms 
of the Constitution in every step taken in the road to war, which must 
be the last step if those short of war should be without avail. 

The day after writing the above letter to the president, Mr. 
Madison wrote Mr. Jefferson as follows: 


The Monroe Doctrine 


317 


To Thomas Jefferson, 

Montpelier, Nov. 1, 1823. 

Dear Sir:—I return the letter of the President. The correspondence 
from abroad has gone back to him, as you desired. I have expressed 
to him my concurrence in the policy of meeting the advances of the 
British Government, having an eye to the forms of our Constitution in 
every step in the road to war. With the British power and navy com¬ 
bined with our own, we have nothing to fear from the rest of the 
world; and in the great struggle of the epoch between liberty and 
despotism, we owe it to ourselves to sustain the former, in this hemis¬ 
phere at least. I have even suggested an invitation to the British Gov¬ 
ernment to join in applying the “small effort for so much good” to the 
French invasion of Spain, and to make Greece an object of some such 
favorable attention. Why Mr. Canning and his colleagues did not 
sooner interpose against the calamity, which could not have escaped 
foresight, can not be otherwise explained but by the different aspect 
of the question when it related to liberty in Spain, and to the ex¬ 
tension of British commerce to her former Colonies. 

Later he wrote the president relative to the matter as fol¬ 
lows : 

Montpelier, Dec. 26, 1823. 

To President Monroe, 

Dear Sir:—Yours of the 20th was duly received. The external 
affairs of our country are, I perceive, assuming a character more and 
more delicate and important. The ground on which the Russian com¬ 
munications were met was certainly well chosen. It is evident that an 
alienation is going on between Great Britain and the ruling powers of 
the Continent, and that the former is turning her views to such a 
connection with this side of the Atlantic as may replace her loss of 
political weight and commercial prospects on the other. This revolu¬ 
tion was indicated by the coaxing speech of Mr. Canning at the Liver¬ 
pool dinner; and is fully displayed by his project for introducing the 
United States to a Congress on the Continent. Whilst the English 
Government very naturally endeavors to make us useful to her na¬ 
tional objects, it is incumbent on us to turn, as far as we fairly can, 
the friendly consultations with her to ours; which, besides being na¬ 
tional, embrace the good of mankind everywhere. It seems particu¬ 
larly our duty not to let that nation usurp a meritorious lead in meas¬ 
ures due to our South American neighbors; one obstacle to which was 
aptly furnished [by] Mr. Rush in his proposal to Mr. Canning, that 
their Independence should be forthwith acknowledged. Nor ought we 
to be less careful in guarding against an appearance in the eyes of 
Europe, at which the self-love of Great Britain may aim, of our being 
a satellite of her primary greatness. 

This last consideration will, of course, be felt in the management 
of the invitation which Mr. Canning is inviting for us to the expected 
Congress. A participation in it would not be likely to make converts 
to our principles; whilst our admission under the wing of England 
would take from our consequence what it would add to hers. Such an 
invitation, nevertheless, will be a mark of respect not without value, 


318 


The Monroe Doctrine 


and this will be more enhanced by a polite refusal than by an ac¬ 
ceptance; not to mention that the acceptance would be a step leading 
us into a wilderness of politics and a den of conspirators. 

The above shows that the immediate, direct and proximate 
cause of the declaration of the Monroe Doctrine was to accept 
the offer of Great Britain made through her minister, Mr. Can¬ 
ning, to our minister at the Court of St. James to join England 
in preventing France, Prussia or Russia, members of Holy 
Alliance, from further acquiring or extending their colonial 
territory or possessions in America. The Holy Alliance was 
endeavoring to gain possession or control at least of the Span¬ 
ish possessions in America, and it was also bent on preventing 
England from acquiring further or extending her possessions 
in America. England knew that if the American territory 
held by Spain, and that claimed by Russia in the northwestern 
part of America was committed to the Alliance, that the balance 
of power would then be in favor of the Holy Alliance, and this 
she was determined to prevent. Great Britain and the Holy 
Alliance were both seeking to make an alliance with the United 
States. The United States chose to make the agreement with 
Great Britain, rather than the Holy Alliance, but she declined 
to be a party to any of their European quarrels, politics or 
wars, but she did agree with England to preserve the status quo 
of all American territory and to see that Spanish possessions 
and colonies were not absorbed by France or Prussia, and that 
Russia did not further extend her possessions to the northwest 
in America. 

England declined to recognize the independence of Spain’s 
possessions as requested by our minister; but England was 
glad to aid in preventing her European adversaries from ac¬ 
quiring American colonies or possessions, for the reason that 
such possessions would have threatened and jeopardized her 
supremacy of commerce. England has always been exceed¬ 
ingly jealous of all nations as to commerce. She has for cen¬ 
turies held the position of primacy as to commerce among all 
the nations of the world, and this above everything else she has. 
for ages guarded. She at once shows her jealous spirit, the 
moment any nation, alliance, or league threatens her supremacy 
as to commerce. She never makes any treaty or enters into 
any alliance or league which does not secure the continuance of 
her supremacy of the seas, and she is ever willing to enter into 
almost any agreement with other nations which tends to per- 


The Monroe Doctrine 


319 


petuate this supremacy. It was this principle alone which in¬ 
duced her to propose the relations with the United States, 
which called forth the Monroe Doctrine. 

She has not always observed the doctrine to the same degree 
or extent which she desired or requested that other European 
countries should be required to observe it. On several occa¬ 
sions, the United States has had to specifically call her atten¬ 
tion to the Doctrine, and to again declare that the Doctrine 
should be enforced against her as well as all other European 
nations. These differences, however, as to England’s rights 
and duties as to American territory or governments, under the 
Monroe Doctrine, were in every instance settled and adjusted 
peaceably. 

While the occasion and the circumstances above referred to 
evoked the explicit declaration of the Monroe Doctrine, it was 
then no new doctrine, either in theory or practice. The doc¬ 
trine was in substance announced in the Federalist, both by 
Hamilton and Madison, and by General Washington in his 
farewell address, and by Mr. Jefferson in his first inaugural 
address, and by every president since, down to and including 
Mr. Wilson. 

Compare the following part of Washington’s farewell ad¬ 
dress with the Monroe Doctrine, and there is little difference 
between the two and to our foreign policies. In that address 
Washington said: 

The great rule of conduct for us in regard to foreign nations, is, in 
-extending our commercial relations, to have with them as little politi¬ 
cal connection as possible. So far as we have already formed engage¬ 
ments, let them he fulfilled with perfect good faith. Here let us stop. 

Europe has a set of primary interests, which to us have none, or a 
very remote relation. Hence she must be engaged in frequent con¬ 
troversies, the causes of which are essentially foreign to our concerns. 
Hence, therefore, it must be unwise in us to implicate ourselves, by 
artificial ties, in the ordinary vicissitudes of her politics, or the ordi¬ 
nary combinations and collisions of her friendships or enmities. 

Our detached and distant situation invites and enables us to pursue 
a different course. If we remain one people, under an efficient Gov¬ 
ernment, the period is not far off when we may defy material injury 
from external annoyance; when we may take such an attitude as will 
cause the neutrality we may at any time resolve upon, to be scrupulous¬ 
ly respected; when belligerent nations, under the impossibility of mak¬ 
ing acquisitions upon us, will not lightly hazard the giving us provoca¬ 
tion; when we may choose the peace or war as our interest, guided by 
justice, shall counsel. 

Why forego the advantages of so peculiar a situation? Why quit 
our own to stand upon foreign ground? Why, by interweaving our 


320 


The Monroe Doctrine 


destiny with that of any part of Europe, entangle our peace and pros¬ 
perity in the toils of European ambition, rivalship, interest, humor, 
or caprice? 

There was a time not many years ago, while Mr. Wilson was 
president of the United States, and represented that govern¬ 
ment only, that he believed in and declared the same doctrines 
as to our relation with foreign nations, w T hich Washington, 
Jefferson and Monroe believed and declared. In 1914, he said, 
commending Washington’s advice to avoid entangling al¬ 
liances : 

Every man who worthily stands in this presence should examine 
himself and see whether he has the full conception of what it means 
that America should live her own life. Washington saw it when he 
wrote his Farewell Address. 

It was not merely because of passing and transient circumstances 
that Washington said that we must keep free from entangling alliances. 
It was because he saw that no country had yet set its face in the same 
direction in which America had set her face. 

WE CAN NOT FORM ALLIANCES WITH THOSE WHO ARE NOT 
GOING OUR WAY: AND IN OUR MIGHT AND MAJESTY AND IN 
THE CONFIDENCE AND DEFINITENESS OF OUR OWN PURPOSE 
WE NEED NOT AND WE SHOULD NOT FORM ALLIANCES WITH 
ANY NATION IN THE WORLD. 

Those who are right, those who study their consciences in deter¬ 
mining their policies, those who hold their honor higher than their ad¬ 
vantage, do not need alliances. 

You need alliances when you are not strong, and you are weak only 
when you are not true to yourself. You are weak only when you are in 
the wrong; you are weak only when you are afraid to do right; you are 
weak only when you doubt your cause and the majesty of a nation’s 
might asserted. 

It is charged by his political opponents, and believed by some 
of his political friends, that Mr. Wilson has had a change of 
head and heart on this subject since he became the champion 
of the League of Nations, and that he now “hears voices in the 
air,” calling him to represent not the United States or the 
people thereof, but the world, and everybody everywhere. It 
is now said by many that he is willing to scrap the Declaration 
of Independence, the Constitution of the United States, Wash¬ 
ington’s Farewell Address, Jefferson’s First Inaugural Ad¬ 
dress, the Monroe Doctrine or any other American institution 
or tradition and accept Lord Cecil’s and General Smuts’ cove¬ 
nants of the proposed League of Nations in lieu of all of these 
and as a panacea of all international ills. 

Mr. Wilson, however, according to the opinion of many who 
have studied his books, read his lectures and speeches, never 


The Alien and Sedition Laws 


321 


has fully believed in our American form of government. A 
division of governmental power between the states and the 
United States, and then, again, dividing those powers among 
the legislative, executive and judicial departments of govern¬ 
ment, has always been considered by Mr. Wilson to have been 
a grievious error. He believes all governmental power ought 
to be centered in one man or body of men. He is also a disbe¬ 
liever in written constitutions. He claims that no nation or 
people can progress who are bound by the ligaments of a writ¬ 
ten constitution. He does not believe that the government or 
its rulers ought to be bound by a written constitution. He is 
the only president of the United States, who has not professed 
to believe in our system of government in the respects above 
mentioned. 

The Alien and Sedition Laws 

The first great division of opinion and sentiment as to the 
character, nature and extent of the powers of the Federal Gov¬ 
ernment after the Constitution was ratified, arose over the valid¬ 
ity of the Alien and Sedition law T s passed by Congress during 
the elder Adams’ administration. Some of the states acting 
through their legislatures passed resolutions of protest against 
these acts of Congress, assailing them as being an unwarranted 
and unauthorized exercise of power by Congress and therefore 
unconstitutional and void. The leading statesmen and consti¬ 
tutional lawyers of the Republican or anti-Federalist party— 
chief among whom were Thomas Jefferson and James Madi¬ 
son—believed and declared these acts to be unconstitutional. 
Virginia and Kentucky both passed resolutions protesting 
against the acts, and memorializing Congress to repeal the 
acts, and requesting other states to join them in their protests 
and memorials on the subject. 

The Virginia resolutions, the reports thereof to the legis¬ 
lature, and the address of the legislature to the people after it 
was passed, were all drafted by James Madison, the father of 
the Constitution. The Kentucky resolutions, the report there¬ 
of, and the address to the people after its adoption, were 
drafted by Thomas Jefferson, the founder of the Democratic 
Party in America. Jefferson and Madison conferred with each 
other often on the subject. The two no doubt suggested this 
course of procedure by the states, and promoted the cause. 
These documents, the Virginia and Kentucky resolutions, the 
reports of the committees accompanying the presentations of 


322 


The Alien and Sedition Laws 


the resolutions and the addresses to the people in support and 
explanation, formed the most important tenets of the doctrines 
of the Kepublican Party, which later became the Democratic 
Party. Politically speaking, these documents formed the new 
testament of the Democratic Party. 

There can be no doubt that these documents were accepted 
by the great majority of the American people as the true expo¬ 
sition and construction of our Constitution, and as declaring 
the true theory of our dual form of government. These reso¬ 
lutions and the reports and addresses accompanying them un¬ 
doubtedly had much to do ^ith defeating Mr. Adams for re- 
election and in electing Mr. Jefferson. They sounded the 
death knell of the Federalist Party, and secured the continued 
success of the Democratic Party for more than a quarter of a 
century. 

The constitutionality of these acts were never passed upon 
by the Supreme Court of the United States: they were passed 
upon, however, by the inferior Federal courts and upheld, and 
convictions had for violations thereof. Among the first acts 
of Mr. Jefferson as president was to pardon in full every man 
who had been convicted under either statute solely on the 
ground that the statutes were void. The statutes were soon 
repealed and no cases involving their validity ever reached the 
Supreme Court. 

The Virginia resolutions and excerpts from the reports and 
addresses accompanying them will be set out herein. The 
Kentucky resolutions are not set out because they are very 
similar to the Virginia resolutions. Madison and Jefferson 
conferred with each other before and while drafting the re¬ 
spective resolutions; and in preparing the addresses, Madison 
drafting those of Virginia and Jefferson those of Kentucky. 

Mr. Calhoun always contended that these resolutions and 
addresses declared for and justified nullification of the acts of 
Congress by the states. The word “Nullification” is used in 
one of the Kentucky resolutions. Mr. Madison and Mr. Jeffer¬ 
son both denied that the resolutions either declared the right 
of secession or nullification, but merely asserted the right to 
petition and memorialize, and to thus avoid causes of revolu¬ 
tion on the part of the people of the several states. Mr. Jef¬ 
ferson and Mr. Madison, however, found it a difficult task to 
answer the logic and reasoning of Mr. Calhoun who always 
claimed that South Carolina’s action as to nullification was no 
more radical than the acts of Virginia and Kentucky in pass- 


Virginia Resolutions 


323 


ing these resolutions, and that the action of all three of the 
states was proper and justifiable under the Constitution; and 
his logic was answered and defeated only by force. 

Virginia Resolutions of 1798 

" In the House of Delegates, 
Friday, December *21, 1798. 

(1) . Resolved, That the General Assembly of Virginia doth un¬ 
equivocally express a firm resolution to maintain and defend the Con¬ 
stitution of the United States, and the Constitution of this State, 
against every aggression either foreign or domestic; and that they will 
support the Government of the United States in all measures war¬ 
ranted by the former. 

(2) . That this Assembly solemnly declares a warm attachment to 
the Union of the States, to maintain which it pledges all its powers; 
and that for this end, it is their duty to watch over and oppose every in¬ 
fraction of those principles which constitute the only basis of that 
Union, because a faithful observance of them can alone secure its exist¬ 
ence and the public happiness. 

(3) . That this Assembly doth explicitly and peremptorily declare 
that it views the powers of the Federal Government as resulting from 
the compact to which the States are parties, as limited by the plain 
sense and intention of the instrument constituting that compact; as 
no further valid than they are authorized by the grants enumerated in 
that compact; and that, in case of a deliberate, palpable, and dangerous 
exercise of other powers not granted by the said compact, the States, 
who are parties thereto, have the right and are in duty bound to in¬ 
terpose for arresting the progress of the evil, and for maintaining 
within their respective limits the authorities, rights, and liberties ap¬ 
pertaining to them. 

(4) . That the General Assembly doth also express its deep regret, 
that a spirit has in sundry instances been manifested by the Federal 
Government to enlarge its powers by forced constructions of the con¬ 
stitutional charter which defines them; and that indications have ap¬ 
peared of a design to expound certain general phrases (which, having 
been copied from the very limited grant of powers in the former 
Articles of Confederation, were the less liable to be misconstrued) so as 
to destroy the meaning and effect of the particular enumeration which 
necessarily explains and limits the general phrases; and so as to con¬ 
solidate the States, by degrees, into one sovereignty, the obvious ten¬ 
dency and inevitable result of which would be to transform the present 
republican system of the United States into an absolute, or, at least, 
a mixed monarchy. 

(5) . That the General Assembly doth particularly protest against 
the palpable and alarming infractions of the Constitution in the two 
late cases of the “Alien and Sedition Acts,” passed at the last session of 
Congress; the first of which exercises a power nowhere delegated to 
the Federal Government, and which, by uniting legislative and judicial 
powers to those of (the) executive, subvert the general principles of 
free government, as well as. the particular organization and positive 
provisions of the Federal Constitution; and the other of which acts 
exercises, in like manner, a power not delegated by the Constitution, 


324 


Virginia Resolutions 


but, on the contrary, expressly and positively forbidden by one of the 
amendments thereto,—a power which, more than any other, ought to 
produce universal alarm, because it is levelled against the right of 
freely examining public characters and measures, and of free communi¬ 
cation among the people thereon, which has ever been justly deemed 
the only effectual guardian of every other right. 

(6) . That this State having by its Convention which ratified the 
Federal Constitution expressly declared that, among other essential 
rights, “the liberty of conscience and of the press can not be can¬ 
celled, abridged, restrained or modified by any authority of the United 
States,” and from its extreme anxiety to guard these rights from every 
possible attack of sophistry or ambition, having, with other States, rec¬ 
ommended an amendment for that purpose, which amendment was in 
due time annexed to the Constitution,—it would mark a reproachful in¬ 
consistency and criminal degeneracy, if an indifference were now shown 
to the palpable violation of one of the rights thus declared and secured, 
and to the establishment of a precedent which may be fatal to the 
other. 

(7) . That the good people of this Commonwealth, having ever felt 
and continuing to feel the most sincere affection for their brethren of 
the other States, the truest anxiety for establishing and perpetuating 
the union of all and the most scrupulous fidelity to that Constitution, 
which is the pledge of mutual friendship, and the instrument of mutual 
happiness, the General Assembly doth solemnly appeal to the like dis¬ 
positions of the other States, in confidence that they will concur with 
this Commonwealth in declaring, as it does hereby declare, that the 
acts aforesaid are unconstitutional; and that the necessary and proper 
measures will be taken by each for co-operating with this State, in 
maintaining unimpaired the authorities, rights, and liberties reserved 
to the States respectively, or to the people. 

(8). That the Governor be desired to transmit a copy of the foregoing 
resolutions to the Executive authority of each of the other States, with 
a request that the same may be communicated to the Legislature there¬ 
of; and that a copy be furnished to each of the Senators and Repre¬ 
sentatives representing this State in the Congress of the United States. 

Attest: JOHN STEWART. 

1798, December 24. Agreed to by the Senate. 

H. BROOKE. 

A true copy from the original deposited in the office of the General 
Assembly. 

JOHN STEWART, Keeper of Rolls. 

Virginia Resolutions of 1799 

In the House of Delegates, 

Friday, January 4, 1799. 

Resolved, That the General Assembly of Virginia will co-operate 
with the authorities of the United States in maintaining the inde¬ 
pendence, Union, and Constitution thereof, against the hostilities or 
intrigues of all foreign Powers whatsoever; and that although dif¬ 
ferences of opinion do exist in relation to internal and domestic meas¬ 
ures, yet a charge that there is a party in this Commonwealth under 
the influences of any foreign power is unfounded and calumnious. 


Virginia Resolutions 


325 


Resolved, That the General Assembly do, and will always, behold 
with indignation, depredations on our commerce, insults on our cit¬ 
izens, impressments of our seamen, or any other injuries committed on 
the people or Government of the United States by foreign nations. 

Resolved, Nevertheless, that our security from invasion and the 
force of our militia render a standing army unnecessary; that the 
policy of the United States forbids a war of aggression; that our whole 
reliance ought to be on ourselves; and, therefore, that while we will 
repel invasion at every hazard, we shall deplore and deprecate the evils 
of war for any other cause. 

Resolved, That a copy of the foregoing resolutions be sent to each 
of the Senators and Representatives of this State in Congress. 

Attest: JOHN STEWART, C. H. D. 

1799, January 10th. Agreed to by the Senate. 

H. BROOKE, C. S. 

A true copy from the original deposited in the office of the General 
Assembly. 

JOHN STEWART, Keeper of Rolls. 

Excerpts from the Report on the Virginia Resolutions 

In all the contemporary discussions and comments which the Con¬ 
stitution underwent, it was constantly justified and recommended on 
the ground that the powers not given to the Government were withheld 
from it; and that if any doubt could have existed on this subject, under 
the original text of the Constitution, it is removed, as far as words 
could remove it, by the amendment, now a part of the Constitution, 
which expressly declares “that the powers not delegated to the United 
States by the Constitution, nor prohibited by it to the States, are re¬ 
served to the States respectively, or to the people. . . . 

The Constitution of the United States was formed by the sanction of 
the States, given by each in its sovereign capacity. It adds to the 
stability and dignity, as well as to the authority of the Constitution, 
that it rests on this legitimate and solid foundation. The States, then, 
being the parties to the constitutional compact, and in their sovereign 
capacity, it follows of necessity that there can be no tribunal above 
their authority to decide, in the last resort, whether the compact made 
by them be violated; and, consequently, that, as the parties to it, they 
must themselves decide, in the last resort, such questions as may be of 
sufficient magnitude to require their interposition. . . . 

It does not allow, however, because the States, as sovereign parties 
to their constitutional compact, must ultimately decide whether it has 
been violated, that such a decision ought to be interposed either in a 
hasty manner or on doubtful and inferior occasions. Even in the case 
of ordinary conventions between different nations, where, by the strict 
rule of interpretation, a breach of a part may be deemed a breach of the 
whole—every part being deemed a condition of every other part, and 
of the whole—it is always laid down that the breach must be both 
wilful and material, to justify an application of the rule. But in the 
case of an intimate and constitutional union, like that of the United 
States, it is evident that the interposition of the parties, in their 
sovereign capacity, can be called for by occasions only deeply essential¬ 
ly affecting the vital principles of their political system. . . . 


326 


Virginia Resolutions 


decide in the last resort, this resort must necessarily be deemed the 
in all questions submitted to it by the forms of the Constitution, to 
decide in the last resort, this resort must necessarily be deemed the 
last in relation to the authorities of the other departments of the Gov¬ 
ernment; not in relation to the rights of the parties to the constitu¬ 
tional compact, from which the judicial as well as the other depart¬ 
ments hold their delegated trusts. On any other hypothesis, the dele¬ 
gation of judicial power would annul the authority delegating it; and 
the concurrence of this department with the others in usurped powers 
might subvert forever, and beyond the possible reach of any rightful 
remedy, the very Constitution which all were instituted to pre¬ 
serve. . . . 

Of the “Alien Act,” it is affirmed by the resolution—1st. That it 
exercises a power nowhere delegated to the Federal Government. 2d. 
That it unites legislative and judicial powers to those of the Executive. 
3d. That this union of power subverts the general principles of free 
government. 4th. That it subverts the particular organization and 
positive provisions of the Federal Constitution. . . . 

One argument offered in justification of this power exercised over 
our aliens is, that the admission of them into the country being of 
favor, not of right, the favor is at all times revocable. 

To this argument it might be answered, that, allowing the truth of 
the inference, it would be no proof of what is required. A question 
would still occur, whether the Constitution had vested the discretionary 
power of admitting aliens in the Federal Government or in the State 
governments. 

But it can not be a true inference, that, because the admission of 
an alien is a favor, the favor may be revoked at pleasure. A grant of 
land to an individual may be of favor, not of right; but the moment 
the grant is made, the favor becomes a right, and must be forfeited be¬ 
fore it can be taken away. To pardon a malefactor may be a favor, but 
the pardon is not, on that account, the less irrevocable. To admit an 
alien to naturalization, is as much a favor as to admit him to reside in 
the country; yet it can not be pretended that a person naturalized can 
be deprived of the benefits any more than a native citizen can be dis¬ 
franchised. 

Again, it is said, that aliens not being parties to the Constitution, 
the rights and privileges which it secures can not be at all claimed 
by them. 

To this reasoning, also, it might be answered that, although aliens 
are not parties to the Constitution, it does not follow that the Constitu¬ 
tion has vested in Congress an absolute power over them. The parties 
to the Constitution may have granted, or retained, or modified, the 
power over aliens, without regard to that particular consideration. 

But a more direct reply is, that it does not follow, because aliens 
are not parties to the Constitution, as citizens are parties to it, whilst 
they actually conform to it, they have no right to its protection. Aliens 
are not more parties to the laws than they are parties to the Constitu¬ 
tion; yet it will not be disputed that, as they owe, on one hand, a tem¬ 
porary obedience, they are entitled, in return, to their protection and 
advantage. 

If aliens had no rights under the Constitution, they might not only 
be banished, but even capitally punished, without a jury or the other 


Virginia Resolutions 


327 


incidents to a fair trial. But so far has a contrary principle been car¬ 
ried, in every respect of the United States, that, except on charges of 
treason, an alien has, besides all the common privileges, the special one 
of being tried by a jury, of which one-half may be also aliens. 

It is said further, that, by the law and practice of nations, aliens 
may be removed, at discretion, for offences against the law of nations; 
that Congress is authorized to define and punish such offenses; and 
that to be dangerous to the peace of society is, in aliens, one of these 
offenses. 

The distinction between alien enemies and alien friends is a clear 
and conclusive answer to this argument. Alien enemies are under the 
law of nations, liable to be punished for offenses against it. Alien 
friends, except in the single case of public ministers, are under the mu¬ 
nicipal law, and must be tried and punished according to that law 
only. . . . 

It is said that the right of removing aliens is an incident to the 
power of war vested in Congress by the Constitution. 

This is a former argument in a new shape only, and* is answered 
by repeating, that the removal of alien enemies is an incident to the 
power of war; that the removal of alien friends is not an incident to 
the power of war. 

It is said that Congress is, by the Constitution, to protect each 
State against invasion; and that the means of preventing invasion are 
included in the power of protection against it. 

The power of war, in general having been before granted by the 
Constitution, this clause must either be a mere specification for greater 
caution and certainty, of which there are other examples in the instru¬ 
ment, or be the injunction of a duty superadded to a grant of the power. 
Under either explanation it can not enlarge the powers of Congress on 
the subject. The power and the duty to protect each State against an 
invading enemy would be the same under the general power, if this 
regard to greater caution had been omitted. 

Invasion is an operation of war. To protect against invasion is an 
exercise of the power of war. A power, therefore, not incident to war 
can not be incident to a particular modification of war. And as the 
removal of alien friends has appeared to be no incident to a general 
state of war, it can not be incident to a partial state or a particular 
modification of war. 

Nor can it ever be granted that a power to act on a case when it 
actually occurs, includes a power over all the means that may tend to 
prevent the occurrence of the case. Such a latitude of construction 
would render unavailing every practical definition of particular and 
limited powers. . . . 

There are powers exercised by most other Governments, which, in 
the United States, are withheld by the people, both from the General 
Government and from the State governments. Of this sort are many 
of the powers prohibited by the Declaration of Rights prefixed to the 
constitutions, or by the clauses in the constitutions in the nature of 
such declarations. Nay, so far is the political system of the United 
States distinguishable from that of other countries, by the caution with 
which powers are delegated and defined, that in one very important 


328 


Virginia Resolutions 


case, even of commercial regulation and revenue, the power is abso¬ 
lutely locked up against the hands of both Governments. A tax on 
exports can be laid by no constitutional authority whatever. . . . 

In the state prior to the Revolution, it is certain that the common 
law, under different limitations, made a part of the colonial codes. 
But whether it be understood that the original colonists brought the 
law with them, or made it their law by adoption, it is equally certain 
that it was the separate law of each colony within its respective limits, 
and was unknown to them as a law pervading and operating through 
the whole as one society. 

It could not possibly be otherwise. The common law was not the 
same in say two of the Colonies; in some the modifications were ma¬ 
terially and extensively different. There was no common legislature 
by which a common will could be expressed in the form of a law; nor 
any common magistracy by which such a law could be carried into 
practice. The will of each colony, alone and separately, had its organs 
for these purposes. . . . 

The fundamental principle of the Revolution was, that the Colonies 
were co-ordinante members with each other and with Great Britain, of 
an empire united by a common executive sovereign, but not united by 
any common legislative sovereign. The legislative power was main¬ 
tained to be as complete in each American Parliament, as in the British 
Parliament. And the royal prerogative was in force in each Colony 
by virtue of its acknowledging the King for its executive magistrate, 
as it was in Great Britain by virtue of a like acknowledgment there. A 
denial of these principles by Great Britain, and the assertion of them 
by America, produced the Revolution. . . . 

The Articles of Confederation are the next source of information 
on this subject. 

In the interval between the commencement of the Revolution and 
the final ratification of these Articles, the nature and extent of the 
Union was determined by the circumstances of the crisis, rather than 
by any accurate delineation of the general authority. It will not be 
alleged that the “common law” could have had any legitimate birth as 
a law of the United States during that state of things. If it came as 
such into existence at all, the Charter of Confederation must have been 
its parent. . . . 

It is readily admitted that particular parts of the common law 
may have a sanction from the Constitution, so far as they are neces¬ 
sarily comprehended in the technical phrases which express the powers 
delegated to the Government; and so far also as such other parts may 
be adopted by Congress as necessary and proper for carrying into 
execution the powers expressly delegated. But the question does not 
relate to either of these portions of the common law. It relates to the 
common law beyond these limitations. 

The only part of the Constitution which seems to have been relied 
on in this case is the 2d section of Article III: “The judicial power 
shall extend to all cases in late and equity arising under this Constitu¬ 
tion, the laws of the United States, and treaties made or which shall 
be made under their authority.” . . . 

The expression “cases in law and equity” is manifestly confined to 


Virginia Resolutions 


329 


cases of a civil nature, and would exclude cases of criminal jurisdic¬ 
tion. Criminal cases in law and equity would be a language un¬ 
known to the law. 

The succeeding paragraph of the same section is in harmony with 
this construction. It is in these words: “In all cases affecting am¬ 
bassadors, or other public ministers, and consuls, and those in which 
a State shall be a party, the Supreme Court shall have original juris¬ 
diction. In all the other cases (including cases of law and equity aris¬ 
ing under the Constitution) the Supreme Court shall have appellate 
jurisdiction both as to law and fact; with such exceptions and under 
such regulations as Congress shall make.” 

This paragraph, by expressly giving an appellate jurisdiction in 
cases of law and equity arising under the Constitution, to fact as well 
as to law, clearly excludes criminal cases where the trial by jury is 
secured, because the fact in such cases is not a subject of appeal. 
And, although the appeal is liable to such exceptions and regulations 
as Congress may adopt, yet it is not to be supposed that an exception 
of all criminal cases could be contemplated, as well because a discre¬ 
tion in Congress to make or omit the exception would be improper, as 
because it would have been unnecessary. . . . 

There are two passages in the Constitution in which a description 
of the law of the United States is found. The first in Article III, Sec¬ 
tion 2, in the words following: “This Constitution, the laws of the 
United States, and treaties made or which shall be made under their 
authority.” The second is contained in the second paragraph of 
Article YI, as follows: “This Constitution and the laws of the United 
States which shall be made, under the authority of the United States, 
shall be the supreme law of the land.” The first of them consist of 
an enumeration which was evidently meant to be precise and com¬ 
plete. If the common law had been understood to be a law of the 
United States, it is not possible to assign a satisfactory reason why 
it was not expressed in the enumeration. . . . 

From the review thus taken of the situation of the American 
Colonies prior to their independence; of the effect of this event on 
their situation; of the nature and import of the Articles of Federa¬ 
tion; of the true meaning of the passage in the existing Constitution 
from which the common law has been deduced; of the difficulties and 
uncertainties incident to the doctrine; and of its vast consequences 
in extending the powers of the Federal Government, and in supersed¬ 
ing the authorities of the State governments—the committee feel the 
utmost confidence in concluding that the common law never was, nor 
by any fair construction can be, deemed a law for the American people 
as one community; and they indulge the strongest expectation that 
the same conclusion will finally be drawn by all candid and accurate 
inquiries into the subject. . . . 

The plain import of this clause is, that Congress shall have all the 
incidental or instrumental powers necessary and proper for carrying 
into execution all the express powers, whether they be vested in the 
Government of the United States, more collectively, or in the several 
departments or officers thereof. 

It is not a grant of new powers to Congress, but merely a declara¬ 
tion, for the removal of all uncertainty, that the means of carrying 
into execution those otherwise granted are included in the grant. 


330 


Virginia Resolutions 


Whenever, therefore, a question arises concerning the constitu¬ 
tionality of a particular power, the first question is, whether the power 
be expressed in the Constitution. If it be, the question is decided. If 
it be not expressed, the next inquiry must be, whether it is properly 
an incident to an express power, and necessary to its execution. If it 
be, it may be exercised by Congress. If it be not. Congress can not 
exercise it. . . . 

In the British Government the danger of encroachments on the 
rights of the people is understood to be confined to the executive 
magistrate. The representatives of the people in the Legislature are 
not only exempt themselves from distrust, but are considered as suffi¬ 
cient guardians of the rights of their constituents against the danger 
from the Executive. Hence it is a principle, that the Parliament is 
unlimited in its power; or, in its own language, is omnipotent. Hence, 
too, all the ramparts for protecting the rights of the people—such as 
their Magna Charta, their Bill of Rights, &c.—are not reared against 
the Parliament, hut against the royal prerogative. They are merely 
legislative precautions against executive usurpations. Under such a 
government as this, an exemption of the press from previous restraint, 
by licensers appointed by the King, is all the freedom that can be 
secured to it. 

In the United States the case is altogether different. The People, 
not the Government, possess the absolute sovereignty. The Legisla¬ 
ture, no less than the Executive, is under limitations of power. En¬ 
croachments are regarded as possible from the one as well as from 
the other. Hence, in the United States the great and essential rights 
of the people are secured against legislative as well as against execu¬ 
tive ambition. They are secured, not by laws paramount to preroga¬ 
tive, but by constitutions paramount to laws. This security of the 
freedom of the press requires that it should be exempt not only from 
previous restraint by the Executive, as in Great Britain, but from 
legislative restraint also; and this exemption, to be effectual, must be 
an exemption not only from the previous inspection of licensers, but 
from the subsequent penalty of law. . . . 

When the Constitution was under the discussions which preceded its 
ratification, it is well known that great apprehensions were ex¬ 
pressed by many, lest the omission of some positive exception, from 
the powers delegated, of certain rights, and of the freedom of the press 
particularly, might expose them to the danger of being drawn, by con¬ 
struction, within some of the powers vested in Congress, more espe¬ 
cially of the power to make all laws necessary and proper for carrying 
their other powers into execution. In reply to this objection, it was 
invariably urged to be a fundamental and characteristic principle of 
the Constitution, that all powers not given by it were reserved; that 
no powers were given beyond those enumerated in the Constitution, 
and such as were fairly incident to them; that the power over the 
rights in question, and particularly over the press, was neither among 
the unenumerated powers, nor incident to any of them; and conse¬ 
quently that an exercise of any such power would be manifest 
usurpation. It is painful to remark how much the arguments now em¬ 
ployed in behalf of the Sedition Act are at variance with the reason¬ 
ing which then justified the Constitution, and invited its ratifica¬ 
tion. . . . 


Virginia Resolutions 331 

The proposition of amendments made by Congress is introduced 
in the following terms: 

“The Conventions of a number of the States having, at the time of 
their adopting the Constitution, expressed a desire, in order to pre¬ 
vent misconstructions or abuse of its powers, that further declara¬ 
tory and restrictive clauses should be added; and as extending the 
ground of public confidence in the Government will best insure the 
beneficent ends of its institutions.” 

Here is the most satisfactory and authentic proof that the several 
amendments proposed were to be considered as either declaratory or 
restrictive, and, whether the one or the other, as corresponding with 
the desire expressed by a number of the States, and as extending the 
ground of public confidence in the Government. . . . 

“We, the delegates of the people of Virginia, duly elected in pursu¬ 
ance of a recommendation from the General Assembly, and now met 
in Convention, having fully and freely investigated and discussed the 
proceedings of the Federal Convention, and being prepared, as well as 
the most mature deliberation hath enabled us, to decide thereon—DO, 
in the name and in behalf of the people of Virginia, declare and make 
known, that the powers granted under the Constitution, being derived 
from the people of the United States, may be resumed by them when¬ 
soever the same shall be perverted to their injury or oppression; and 
that every power not granted thereby remains with them, at their 
will. That, therefore, no right of any denomination can be cancelled, 
abridged, restricted, or modified by the Congress, by the Senate or 
House of Representatives, acting in any capacity, by the President, 
or any department or officer of the United States, except in those in¬ 
stances in which power is given by the Constitution for those pur¬ 
poses; and that, among other essential rights, the liberty of con¬ 
science and of the press can not be cancelled, abridged, restrained, or 
modified, by any authority of the United States.” 

Here is an express and solemn declaration by the Convention of 
the State, that they ratified the Constitution in the sense that no right 
of any denomination can be cancelled, abridged, restrained, or modi¬ 
fied, by the Government of the United States, or any part of it, except 
in those instances in which power is given by the Constitution; and 
in the sense; particularly, “that among other essential rights, the 
liberty of conscience and freedom of the press can not be cancelled, 
abridged, restrained, or modified, by any authority of the United 
States.” 

Words could not well express in a fuller or more forcible manner 
the understanding of the Convention, that the liberty of conscience 
and the freedom of the press were equally and completely exempted 
from all authority whatever of the United States. 

Under an anxiety to guard more effectually these rights against 
every possible danger, the Convention, after ratifying the Constitution, 
proceeded to prefix to certain amendments proposed by them a declara¬ 
tion of rights, in which are two articles providing, the one for the 
liberty of conscience, the other the freedom of speech and of the 
press. . . . 


332 


Virginia Resolutions 


First, Both of these rights, the liberty of conscience and of the 
press, rest equally on the original ground of not being delegated by the 
Constitution, and, consequently, withheld from the Government. Any 
construction, therefore, that would attack this original security for the 
one must have the like effect on the other. 

Secondly. They are both equally secured by the supplement to the 
Constitution, being both included in the same amendment, made at the 
same time, and by the same authority. Any construction or argument, 
then, which would turn the amendment into a grant or acknowledgment 
of power with respect to the press, might be equally applied to the 
freedom of religion. 

Thirdly. If it be admitted that the extent of the freedom of the 
press secured by the amendment is to be measured by the common law 
of this subject, the same authority may be resorted to for the standard 
which is to fix the extent of the “free exercise of religion.” It can 
not be necessary to say what this standard would be; whether the com¬ 
mon law be taken solely as the unwritten, or as varied by the written 
law of England. 

Fourthly. If the words and phrases in the amendment are to be 
considered as chosen with a studied discrimination, which yields an 
argument for a power over the press under the limitation that its free¬ 
dom be not abridged, the same argument results from the same consid¬ 
eration for a power over the exercise of religion, under the limitation 
that its freedom be not prohibited. 

For if Congress may regulate the freedom of the press, provided 
they do not abridge it, because it is said only “they shall not abridge 
it,” and is not said “they shall make no law respecting it,” the analogy 
of reasoning is conclusive that Congress may regulate and even abridge 
the free exercise of religion, provided they do not prohibit it; because 
it is said only “they shall not prohibit it,” and is not said “they shall 
make no law respecting, or no law abridging it.” . . . 

The Legislatures of the States have a right also to originate amend¬ 
ments to the Constitution, by a concurrence of two-thirds of the whole 
number, in applications to Congress for the purpose. When new States 
are to be formed by a junction of two or more States, or parts of States, 
the Legislatures of the States concerned are, as well as Congress, to 
concur in the measure. The States have a right also to enter into 
agreements or compacts, with the consent of Congress. In all such 
cases a communication among them results from the object which is 
common to them. . . . 

It can not be forgotten, that among the arguments addressed to those 
who apprehend danger to liberty from the establishment of the Gen¬ 
eral Government over so great a country, the appeal was emphatically 
made to the intermediate existence of the State Governments, between 
the people and that Government; to the vigilance with which they 
would descry the first symptoms of usurpation; and to the promptitude 
with which they would sound the alarm to the public. This argument 
was probably not without its effect; and if it was a proper one then 
to recommend the establishment of the Constitution, it must be a 
proper one now to assist in its interpretation. 


Virginia Resolutions 


333 


Excerpts from the Address of the General Assembly to the 
People of the Commonwealth of Virginia Relative to 
Virginia Resolutions of 1798 

It would be perfidious in those entrusted with the guardianship of 
the State sovereignty, and acting under the solemn obligation of the 
following oath, “I do swear that I will support the Constitution of the 
United States,” not to warn you of encroachments, which, though 
clothed with the pretext of necessity, or disguised by arguments of 
expediency, may yet establish precedents which may ultimately devote 
a generous and unsuspicious people to all the consequences of usurped 
power. 

Encroachments springing from a government whose organization 
can not be maintained without the co-operation of the States, furnish 
the strongest inducements upon the State Legislatures to watchfulness, 
and impose upon them the strongest obligation to preserve unimpaired 
the line of partition. 

The acquiescence of the States under infractions of the Federal 
compact, would either beget a speedy consolidation, by precipitating 
the State Governments into impotency and contempt; or prepare the 
way for a revolution, by a repetition of these infractions, until the 
people are roused to appear in the majesty of their strength." It is to 
avoid these calamities that the exhibit to the people the momentous 
question, whether the Constitution of the United States shall yield to 
a construction which defies every restraint and overwhelms the best 
hopes of republicanism. 

Exhortations to disregard domestic usurpation, until foreign danger 
shall have passed, is an artifice which may be forever used; because 
the possessors of power, who are the advocates for its extension, can 
ever create national embarrassments, to be successively employed to 
soothe the people into sleep, whilst that power is swelling, silently, 
secretly, and fatally. Of the same character are insinuations of a for¬ 
eign influence, which seize upon a laudable enthusiasm against danger 
from abroad, and distort it by an unnatural application, so as to blind 
your eyes against danger at home. . . . 

The sedition act is the offspring of these tremendous pretensions, 
which inflict a death-wound on the sovereignty of the States. 

For the honor of American understanding, we will not believe that 
the people have been allured into the adoption of the Constitution by 
an affection of defining powers, whilst the preamble would admit a 
construction which would erect the will of Congress into a power para¬ 
mount in all cases, and therefore limited in none. On the contrary, 
it is evident that the objects for which the Constitution was formed 
were deemed attainable only by a particular enumeration and specifica¬ 
tion of each power granted to the Federal Government; reserving all 
others to the people, or to the States. And yet it is in vain we search 
for any specified power embracing the right of legislation against the 
freedom of the press. 

Had the States been despoiled of their sovereignty by the generality 
of the preamble, and had the Federal Government been endowed with 
whatever they should judge to be instrumental towards union, justice, 


334 


Virginia Besolutions 


tranquillity, common defence, general welfare, and the preservation of 
liberty, nothing could have been more frivolous than an enumeration 
of powers. 

It is vicious in the extreme to calumniate meritorious public ser¬ 
vants; but it is both artful and vicious to arouse the public indignation 
against calumny in order to conceal usurpation. Calumny is forbidden 
by the laws, usurpation by the Constitution. Calumny injures individ¬ 
uals, usurpation, States. Calumny may be redressed by the common 
judicatures; usurpation can only be controlled by the act of so¬ 
ciety. . . . 

The sophistry of a distinction between the liberty and the licentious¬ 
ness of the press is so forcibly exposed in a late memorial from our 
late envoys to the Minister of the French Republic, that we here present 
it to you in their own words: 

“The genius of the Constitution, and the opinion of the people of the 
United States, can not be overruled by those who administer the Gov¬ 
ernment. Among those principles deemed sacred in America, among 
those sacred rights considered as forming the bulwark of their liberty, 
which the Government contemplates with awful reverence and would 
approach only with the most cautious circumspection, there is no one 
of which the importance is more deeply impressed on the public mind 
than the liberty of the press. That this liberty is often carried to ex¬ 
cess; that it has sometimes degenerated into licentiousness, is seen 
and lamented, but the remedy has not yet been discovered. Perhaps 
it is an evil inseparable from the good with which it is allied; perhaps 
it is a shoot which can not be stripped from the stalk without wounding 
vitally the plant from which it is torn. However desirable those meas¬ 
ures might be ivhich might correct without enslaving the press, they 
have never yet been devised in America. No regulations exist which 
enable the Government to suppress whatever calumnies or investives 
any individual may choose to offer to the public eye, or to punish such 
calumnies and investives otherwise than by a legal prosecution in 
courts which are alike open to all who consider themselves as in¬ 
jured.” ... 

Measures have already been adopted which may lead to these conse¬ 
quences. They consist— 

In fiscal systems and arrangements, which keep a host of commercial 
and wealthy individuals embodied, and obedient to the mandates of 
the treasury. 

In armies and navies, which will, on the one hand, enlist the ten¬ 
dency of man to pay homage to his fellow-creature who can feed or 
honor him; and on the other, employ the principle of fear, by punish¬ 
ing imaginary insurrections, under the pretext of preventive justice. 

In extensive establishment of a volunteer militia, rallied together by 
a political creed, armed and officered by executive power, so as to de¬ 
prive the States of their constitutional right to appoint militia officers, 
and to place the great bulk of the people in a defenceless situation. 

In swarms of officers, civil and military, who can inculcate political 
tenets tending to consolidation and monarchy both by indulgences and 
severities; and can act as spies over the free exercise of human 
reason. . . . 

Pledged as we are, fellow-citizens, to these sacred engagements, we 
yet humbly and fervently implore the Almighty Disposer of events to 


The Embargo Acts 


335 


avert from our land war and usurpation, the scourges of mankind; to 
permit our fields to be cultivated in peace; to instil into nations the 
love of friendly intercourse; to suffer our youth to be educated in 
virtue, and to preserve our morality from the pollution invariably in¬ 
cidents to habits of war; to prevent the laborer and husbandman from 
being harassed by taxes and imposts; to remove from ambition the 
means of disturbing the commonwealth; to annihilate all pretexts for 
power afforded by war; to maintain the Constitution; and to bless our 
nation with tranquillity, under whose benign influence we may reach 
the summit of happiness and glory, to which we are destined by nature 
and nature's God. 

Attest: JOHN STEWART, C. H. D. 

1799, January 23rd. Agreed to by the Senate. 

H. BROOKE, C. S. 

A true copy from the original deposited in the office of the General 
Assembly. JOHN STEWART, Keeper of Rolls. 

The Embargo Acts 

These Alien and Sedition acts passed by Congress during the 
presidential term of the elder Adams were so unpopular and 
tended so strongly toward monarchical and military govern¬ 
ment, that they defeated Mr. Adams for re-election, and elected 
Mr. Jefferson who drafted the Kentucky resolutions and who 
conferred with Mr. Madison, who drafted the Virginia resolu¬ 
tions. Mr. Jefferson also selected Mr. Madison as his secre¬ 
tary of state, and who was later chosen as his successor as 
president. 

During the second term of the administration of Mr. Jeffer¬ 
son, in 1807, nearly all Europe was engaged in war, and the 
seas swarmed with pirates and all international commerce was 
rendered very hazardous—not only on account of pirates, but 
European nations at war were seizing and confiscating not only 
the ships of their enemies, but those of all neutral countries as 
well. These European warring nations, especially England, 
were impressing our seamen: England even impressed two 
nephews of General Washington. This condition was giving 
a constant source of war, and thus threatened to put the 
United States into war with one or more of the European na¬ 
tions. Conditions were such that the United States could not 
carry on international commerce, and remain neutral. No mat¬ 
ter how discreet the commerce was conducted, one or another 
of the warring nations would take offense and involve it in the 
war. As the only means to avoid war, Mr. Jefferson, and Mr. 
Madison—his secretary of state—and Congress agreed that all 
commerce with all foreign or European nations, especially those 


336 


The Embargo Acts 


at war, should be stopped and it was accomplished, or pro¬ 
hibited, by the passage of the Universal Embargo Acts which 
prohibited all such international commerce during the Euro¬ 
pean wars; and the United States thus kept from being in¬ 
volved or drawn into the European wars. These acts were, 
however, repealed as soon as the causes of war were removed. 

Similar acts were again passed during Mr. Madison’s term 
of office, but war nevertheless resulted then because our terri¬ 
tory was then invaded by foreign forces, and they had to be 
repelled, or we had to lose our independence, territory and 
probably government as well. 

These Embargo Acts proved very unpopular in the New Eng¬ 
land states, which were largely engaged in commerce. So un¬ 
popular were they that some of the eastern states resolved 
against them as Virginia and Kentucky had done against the 
Alien and Sedition laws. The legislatures of these states de¬ 
clared the acts to be void and unconstitutional, and in effect 
nullified them in so far as the states could do so. The state 
courts declined to enforce the statutes, and even juries in the 
Federal courts in these states declined to convict as for viola¬ 
tions of these statutes. On this account, there were large 
elements and forces in these states opposed to the wars, even 
when our territory was invaded. There w-as a strong opposi¬ 
tion in Congress during Mr. Madison’s administration to de¬ 
claring or carrying on the wars: every act of the administra¬ 
tion was opposed by this element in Congress and it came near 
resulting in the defeat of our armies. The famous Hartford 
Convention was composed of this element in the Eastern and 
Northern States, that was opposed to the Embargo Acts, the 
war, and the administration of Madison. Fortunately, how¬ 
ever, the surrender of the British forces occurred while this 
Convention was in session, and peace followed, before the Con¬ 
vention adjourned and before it could take action. Had the 
war held out three months longer, until the opposition was thus 
organized as the Convention proposed, the result might have, 
and probably would have been very different, and we would 
have lost the independence we gained by the Revolution. 

The success of our armies, the declaration of peace, so en¬ 
thused the people that they seemed for the time to forget that 
there was an opposition party, and public opinion severely con¬ 
demned the action of those who opposed Mr. Madison, the war, 
or the Embargo Acts. So severe and pronounced was public 


Sovereignty of Public Opinion 


33 ? 


opinion against those who participated in or sympathized with 
this Convention that it resulted in the political death of every 
one of the participants and of the Federalist party. 

Public Opinion 

Mr. Madison has set forth the effect of public opinion on 
governments, with his usual lucidity of expression: 

Public opinion sets bounds to every government, and is the real 
sovereign in every free one. 

As there are cases where the public opinion must be obeyed by the 
Government; so there are cases where, not being fixed, it may be influ¬ 
enced by the Government. This distinction, if kept in view, would pre¬ 
vent or decide many debates on the respect due from the Government 
to the sentiments of the people. 

In proportion as Government is influenced by opinion, it must be 
so by whatever influences opinion. This decides the question concern¬ 
ing a Constitutional Declaration of Rights, which required an influence 
on Government, by becoming a part of the public opinion. 

The larger a country the less easy for its real opinion to be ascer¬ 
tained, and the less difficult to be counterfeited; when ascertained or 
presumed, the more respectable it is in the eyes of individuals. This 
is favorable to the authority of Government. For the same reason, the 
more extensive a country the more insignificant is each individual in 
his own eyes. This may be unfavorable to liberty. 

Whatever facilitates a general intercourse of sentiments, as good 
roads, domestic commerce, a free press, and particularly a circulation 
of neivspapers through the entire body of the people; and Representa¬ 
tives going from and returning among, every part of them, is equivalent 
to a contraction of territorial limits, and is favorable to liberty, where 
these may be too expensive. 4 Writings of Madison, p. 460. 

No greater truth was ever uttered than the above that public 
opinion is the real sovereign in every free government. Public 
opinion abolished slavery in spite of written provisions in the 
Federal Constitution, that the Federal Government could not 
interfere with the institutions in the several States and in spite 
of the decision of the Supreme Court in the Dred Scott case, 
and in spite of Lincoln’s first inaugural address, when he said, 
“I have neither the power nor the desire to abolish slavery.” 

It made the great Lincoln recant and made him declare war 
against the seceding States and issue a proclamation abolish¬ 
ing slavery, within a few months after he had said he had 
neither the power nor the desire to free the slaves in the 
Southern States. 

It made President Wilson declare war when personally he 
desired to be neutral. It made him declare then there can be 
no peace without victory, after he had theretofore declared 
there must be peace without victory. 


338 


Political Parties in United States 


It made Congress, in the re-constrnction period, pass bill 
after bill, which were in palpable violation of the Constitu¬ 
tion, and which had to be enforced by military authority in 
time of peace, because unconstitutional. It made the same 
Congress attempt to impeach the President of the United States 
because he would not attempt to enforce the unconstitutional 
statutes, and because he exercised his constitutional right as 
President in vetoing such bills as he deemed unconstitutional 
and in removing from office and places in his Cabinet men 
whom he deemed unfit to discharge the duties thereof, and 
who had declined his requests to resign. 

It . made Madison approve bills for internal improve¬ 
ments when he believed that Congress had no such power. It 
made Jefferson acquire Louisiana by purchase when he be¬ 
lieved that the Constitution conferred no such power. It has 
made Congress propose several amendments to the Constitu¬ 
tion when the majority of Congress did not believe in or favor 
the proposed amendments. It has made every State Legis¬ 
lature vote for and pass bills which more than one-half of the 
members did not favor. 

Public opinion, when once formed and well crystallized, 
rules with an iron hand in all free governments, no matter 
what may be the constitutional provisions. It will rule by 
peace if it can, but by force if it must. Public opinion in 
America was in favor of abolishing slavery and of preserving 
the Union; as it could not do both peaceably, it decided to 
do the first by force, and in spite of the Constitutional pro¬ 
visions protecting the right of slavery in the Southern States 
and without Constitutional authority to coerce the Southern 
States. The fact that the Southern States were claiming only 
their Constitutional rights made no difference. This did not 
satisfy public opinion. 

Political Parties in the United States 

Mr. Bryce thus speaks on the subject : 

In America, the great moving forces are the parties. The Govern¬ 
ment counts for less than in Europe, the parties count for more; and 
the fewer have become their principles and the fainter their interest 
in those principles, the more perfect has become their organization. 
The less of nature the more of art; the less spontaneity the more 
mechanism. Bryce's American Commonwealth, Vol. I, 638. 

This is well put by Mr. Bryce, who is certainly as familiar 
with the principles of European governments and parties as 


Political Parties in United States 


339 


any other European, and more familiar with American govern¬ 
mental parties than any other man who is not an American, 
and more so than many Americans, who have presumed to 
write on the subject, including the writer of this and the com¬ 
piler of this book. It is too true that with us, the government 
is forgotten in the race between the parties for control of it. 
Party spirit sometimes becomes so strong that the people seem 
willing to wreck the government if necessary to save the party 
in power, or to put a new one in. 

This was true in 1860. No matter which party had won, the 
other would have withdrawn from the Union. 

The Union, Lincoln said, could no longer exist one-half free 
and one-half slave. It did so exist for a long time, nearly a 
century, but it was because it was so equally divided on the 
subject. It could not exist if a decided majority of the States 
was pro or anti slavery. For years and years, the balance of 
power was preserved by admitting two states'at a time into 
the Union, one slave and one non-slave. 

Mr. Bryce has further illustrated the relation of American 
parties to American governments: 

When the machinery had been set in motion by the choice of George 
Washington as president, and with him of a Senate and a House of 
Representatives, the tendencies which had opposed or supported the 
adoption of the Constitution, reappeared not only in Congress but in 
the President’s cabinet, where Alexander Hamilton, secretary of the 
treasury, counselled a line of action which assumed and required the 
exercise of large powers by the Federal Government, while Jefferson, 
the secretary of State, desired to practically restrict its action to for¬ 
eign affairs. The advocates of a central national authority had begun 
to receive the name of Federalists, and to act pretty constantly to¬ 
gether, when an event happened which, while it tightened their union, 
finally consolidated their opponents also into a party. This was the 
creation of the French Republic and its declaration of war against 
England. Bryce's American Commonwealth, Yol. I, 639. 

While the piercing intellect of Hamilton developed all those of its 
provisions which invested the Federal Congress and President with 
far-reaching powers, and sought to build up a system of institutions 
which showed to these provisions their full effect, Jefferson 1 and his 


x Mr Jefferson not only responded to 
the then public opinion in America but 
he was in accord with it. He voiced 
it and formulated it in the Declaration 
of Independence, in the laws of Vir¬ 
ginia, and in the first ten amendments 
to the Constitution. Hamilton and 
Adams responded to and were in ac¬ 
cord wtih the public opinion of Eng¬ 
land, but not of America. They ac¬ 
cepted the Constitution and govern¬ 
ment created by it because they knew 
it was as strong and as near like the 


British government as it was then pos¬ 
sible to obtain. The same may be said 
of Mr. Jefferson and his followers: 
they accepted the Constitution and 
government because they believed it 
was as near their wishes as they could 
then obtain. Each party believed it 
would in the future be changed to 
meet their views. For the first 75 
years, it was changed to meet the 
views of Jefferson, for the last 75 
years it has been changed to meet the 
views of Hamilton and Adams. 


340 


Political Parties in United States 


coadjutors appealed to the sentiment of individualism, strong in the 
masses of the people, and, without venturing to propose alterations in 
the text of the Constitution, protested against all extensions of its let¬ 
ter, and against all the assumptions of Federal authority which such 
extensions could he made to justify. Thus two parties grew up with 
tenets, leaders, impulses, sympathies, hatreds, hatreds which soon be¬ 
came so bitter as not to spare the noble and dignified figure of Wash¬ 
ington himself, whom the angry Republicans assailed with invectives 
the more unbecoming because his official position forbade him to reply. 

At first the Federalists had the best of it, for the reaction against 
the weakness of the old Confederation which the Union had superseded 
disposed sensible men to tolerate a strong central power. The Presi¬ 
dent, though not a member of either party, was, by force of circum¬ 
stances, as well as owing to the influences of Hamilton, practically with 
the Federalists. But during the presidency of John Adams, who suc¬ 
ceeded Washington, they committed grave errors. When the presi¬ 
dential election of 1800 arrived, it was seen that the logical and 
oratorical force of Hamilton’s appeals to the reason of the nation told 
far less than the skill and energy with which Jefferson played on their 
feelings and prejudices. Bryce's American Commonwealth, Vol. I, 640. 

Jefferson’s popularity lies in the fact that he became the representa¬ 
tive not merely of democracy, but of local democracy, of the notion that 
government is hardly wanted at all, that the people are sure to go right 
if they are left alone, that he who resists authority is prima facie, justi¬ 
fied in doing so, because authority is prima facie tyrannical, that a 
country where each local body in its own local area looks after the 
objects of common concern, raising and administering any such funds 
as are needed, and is interfered with as little as possible by any ex¬ 
ternal power, comes neraest to the ideal of a truly free people. Some 
intervention on the part of the State there must be, for the State makes 
the law and appoints the judges of appeal; but the less one has to do 
with the State, and a fortiori the less one has to do with the less popu¬ 
lar and more encroaching Federal authority, so much the better. Jef¬ 
ferson impressed this view on his countrymen with so much force and 
such personal faith that he became a sort of patron saint of freedom 
in the eyes of the next generation, who used to name their children 
after him, and to give dinners and deliver high-flown speeches on his 
birthday, a festival only second in importance to the immortal Fourth 
of july. He had borrowed from the Revolutionists of France even their 
theatrical ostentation of simplicity. He rejected the ceremonial with 
which Washington had sustained the chief magistracy of the nation, 
declaring that to him there was no majesty but that of the people. 
Bryce's American Commonwealth, Vol. I, 642. 

It is related of a New England clergyman that when, being about to 
baptize a child, he asked the father the child’s name, and the father re¬ 
plied, “Thomas Jefferson,” he answered in a loud voice, “No such un¬ 
christian name. John Adams, I baptize thee,” with the other sacra¬ 
mental words of the rite. Bryce's American Commonwealth, Vol. I, 642. 

The disappearance of the Federal party between 1815 and 1820 left 
the Republicans masters of the field. But in the United States if old 
parties vanish nature produces new ones. Sectional divisions soon 
arose among the men who joined in electing Monroe in 1820, and under 
the influence of the personal hostility of Henry Clay and Andrew Jack- 


Political Parties in United States 


o41 


son (chosen President in 1828), two great parties were again formed 
(about 1830) which some few years later absorbed the minor groups. 
One of these two parties carried on, under the name of Democrats, the 
dogmas and traditions of the Jeffersonian Republicans. It was the de¬ 
fender of States’ Rights and of a restrictive construction of the Con¬ 
stitution; it leant mainly on the South and the farming classes gen¬ 
erally, and it was therefore inclined to free trade. The other section, 
which called itself at first the National Republican, ultimately the 
Whig party, represented many of the views of the former Federalists, 
such as their advocacy of a tariff for the protection of manufacture, and 
of the expenditure of public money for internal improvements. Bryce's 
American Commonwealth, Vol. I, 644-5. 

In 1819, when sharp contest broke out in Congress as to whether 
slavery should be permitted within her limits, nearly all the Northern 
members voted against slavery, nearly all the Southern members for. 
The struggle might have threatened the stability of the Union but for 
the compromise adopted next year, which, while admitting slavery in 
Missouri, forbade it for the future north of lat. 36° 30'. The danger 
seemed to have passed, but in its very suddenness there had been some¬ 
thing terrible. Jefferson, then over seventy, said that it startled him 
“like a fire-bell in the night.” Bryce's American Commonwealth, Vol. 
I, 645. 

The Democratic party had by 1852 passed almost completely under 
the control of the slave-holders, and was adopting the dogma that Con¬ 
gress enjoyed under the Constitution no power to prohibit slavery in 
the territories. This dogma obviously overthrew as unconstitutional 
the Missouri compromise of 1820. The Whig leaders discredited them¬ 
selves by Henry Clay’s compromise scheme of 1850, which, while ad¬ 
mitting California as a free State, appeased the South by the Fugitive 
Slave Law. They received a crushing defeat at the presidential election 
in 1852; and what remained of their party finally broke in pieces in 
1854 over the bill for organizing Kansas as a territory in which the 
question of slaves or no slaves should be left to the people, a bill which 
of course repealed the Missouri compromise. Singularly enough, the 
two orators of the party, Henry Clay and Daniel Webster, both died in 
1852, wearied with strife and disappointed in their ambition of reach¬ 
ing the presidential chair. Together with Calhoun, who passed away 
two years earlier, they are the ornaments of this generation, not indeed 
rising to the stature of Washington or Hamilton, but more remarkable 
than any, save one, among the statesmen who have followed them. 
With them ends the second period in the annals of American parties, 
which, extending from about 1820-to 1856, includes the rise and fall of 
the Whig party. Bryce's American Commonwealth, Vol. I, 646. 

The Whig party having vanished, the Democrats seemed to be for 
the moment, as they had been once before, left in possession of the field. 
But this time a new antagonist was quick to appear. The growing 
boldness of the slave-owners had begun to alarm the Northern people 
when they were startled by the decision of the Supreme Court, pro¬ 
nounced in the case of the slave Dred Scott, which laid down the doc¬ 
trine that Congress had no power to forbid slavery anywhere, and that a 
slave-holder might carry his slaves wtih him where he pleased, seeing 
that they were mere objects of property, whose possession the Con- 


342 


Political Parties in United States 


stitution guaranteed. This hastened the formation out of the wrecks 
of the Whigs of the new party, which took in 1856 the name of Re¬ 
publican, while at the same time it threw an apple of discord among 
the Democrats. In 1860 the latter could not agree upon a candidate for 
President. The Southern wing pledged themselves to one man, the 
Northern wing to another; a body of hesitating and semi-detached 
politicians put forward a third. Thus the Republicans through the 
divisions of their opponents triumphed in the election of Abraham 
Lincoln, presently followed by the secession of eleven slave States. 

The Republican party, which had started by denouncing the Dred 
Scott decision and proclaiming the right of Congress to restrict slavery, 
was of course throughout the Civil War the defender of the Union and 
the assertor of Federal authority, stretched, as was unavoidable, to 
lengths previously unheard of. Bryce's American Commonwealth, Vol. 
I, 6Jfl. 

If we look over Europe we shall find that the grounds on which 
parties have been built and contests waged since the beginning of free 
governments have been in substance but few. In the hostility of rich 
and poor, or of capital and labor, in the fears of the Haves and the 
desire of the Have-nots, we perceive the most frequent ground, though 
it is often disguised as a dispute about the extension on the suffrage or 
some other civic right. Questions relating to the tenure of land have 
played a large part; so have questions of religion; so too have animosi¬ 
ties of jealousies of race; and of course the form of government, 
whether it shall be a monarchy or a republic, has sometimes been in 
dispute. None of these grounds of quarrel substantially affected Amer¬ 
ican parties during the three periods we have been examining. No one 
has ever advocated monarchy, or a restricted suffrage, or a unified in¬ 
stead of a Federal republic. Nor down to 1876 was there ever any 
party which could promise more to the poor than its opponents. In 
1852 the Know-nothing party came forward as the organ of native 
American opinion against recent immigrants, then chiefly the Irish, 
for German immigration was comparatively small in those days. But 
as this party failed to face the problem of slavery, and roused jealousy 
by its secret organization, it soon passed away. The complete equality 
of all sects, with the complete neutrality of the government in re¬ 
ligious matters, has fortunately kept religious passion outside the 
sphere of politics. Bryce's American Commonwealth, Vol. I, 6^8-9. 

Hamilton, who had a low opinion of mankind, but a gift and a 
passion for large constructive statesmanship, went so far in his advo¬ 
cacy of a strong government as to be suspected of wishing to establish 
a monarchy after the British pattern. He has left on record his opin¬ 
ion that the free constitution of England, which he admired in spite 
of the faults he clearly saw, could not be worked without its corrup¬ 
tions. Jefferson carried further than any other person set in an equally 
responsible place has ever done, his faith that government is either 
needless or an evil, and that with enough liberty, everything will go 
well. An insurrection every few years, he said, must be looked for, and 
even desired, to keep government in order. The Jeffersonian tendency 
has always remained, like a leaven, in the Democratic party, though in 
applying Jeffersonian doctrines that slave-holders stopped when they 
came to a black skin. Among the Federalists, and their successors the 
Whigs, and the more recent Republicans, there has never been wanting 


Political Parties in United States 


343 


a full faith in the power of freedom. The Republicans gave a remark¬ 
able proof of it when they bestowed the suffrage on the negroes. Bryce's 
American Commonwealth , Vol. I, 651. 

There are now two great and several minor parties in the United 
States. The great parties are the Republicans and the . Democrats. 
What are their principles, their distinctive tenets, their tendencies? 
which of them is for free trade, for civil service reform, for a spirited 
foreign policy, for the regulation of telegraphs of legislation, for a na¬ 
tional bankrupt law, for changes in the currency for any other of the 
twenty issues which one hears discussed in the country as seriously in¬ 
volving its welfare? 

This is what a European is always asking of intelligent Republicans 
and intelligent Democrats. He i-s always asking because he never gets 
an answer. The replies leave him in deeper perplexity. After some 
months the truth begins to dawn upon him. Neither party has any¬ 
thing definite to say on these issues; neither party has any principles, 
any distinctive tenets. Both have traditions. Both claim to have 
tendencies. Both have certainly war cries, organizations, interests 
enlisted in their support. But those interests are in the main the 
interests of getting or keeping the patronage of the Government. 
Tenets and politics, points of political doctrine and points of political 
practice, have all but vanished. They have not been thrown away but 
have been stripped away by Time and the progress of events fulfilling 
some policies, blotting out others. All has been lost, except office or the 
hope of it. Bryce's American Commonwealth, Vol. I, 653. 

Yet one can not say that there is to-day no difference between the 
two great parties. There is a difference of spirit or sentiment per¬ 
ceptible even by a stranger when, after having mixed for some time 
with members of the one he begins to mix with those of the other, and 
doubtless much more patent to a native American. It resembles 
(though it is less marked than) the difference of tone and temper be¬ 
tween Tories and Liberals in England. The intellectual view of a 
Democrat of the better sort is not quite the same as that of his Re¬ 
publican compeer, neither is his ethical standard. Each of course 
thinks meanly of the other; but while the Democrat thinks the Re¬ 
publican “dangerous” (i. e. likely to undermine the Constitution), the 
Republican is more apt to think the Democrat vicious and unscrupu¬ 
lous. So in England the Liberal fastens on stupidity as the char¬ 
acteristic fault of the Tory, while the Tory suspects the morals and 
religion more than he despises the intelligence of the Radical. 

It can not be charged on the American parties that they have drawn 
towards one another by forsaking their old principles. It is time that 
has changed the circumstances of the country, and made those old 
principles inapplicable. They would seem to have erred rather than 
clinging too long to outworn issues, and by neglecting to discover and 
work out new principles capable of solving the problems which now 
perplex the country. In a country so full of change and movements as 
America new questions are always coming up, and must be answered. 
New troubles surround them; new diseases attack the nation, and have 
to be cured. The duty of a great party is to face these, to find answers 
and remedies, applying to the facts of the hour the doctrines it has 
lived by, so far as they are still applicable, and when they have ceased 
to be applicable, thinking out new doctrines conformable to the main 


344 


Political Parties in United States 


principles and tendencies which it represents. This is a work to be 
accomplished by its ruling minds, while the habit of party loyalty to 
the leaders powerfully serves to diffuse through the mass of followers 
the conclusions of the leaders and the reasonings they have employed. 
Bryce's American Common-wealth, Vol. 1, 659-660. 

Opposition Political Parties 

Dr. Lieber thus shows the need of opposing parties: 

The protection of the minority leads to that great institution, as it 
has been boldly but not inappropriately called—the opposition. A well- 
organized and fully protected opposition, in and out of the Legislature— 
a loyal opposition, by which is meant a party which opposes, on prin¬ 
ciple, the administration, or the set of men who have, for the time 
being, the Government in their hands, but does so under and within the 
fundamental law—is so important an element of civil liberty, whether 
considered as a protecting fence or as a creative power. Liebei's Civil 
Liberty and Self-Government, 18Jf. 

The Free Soil Party 

Extract from the Free Soil Party platform of 1842 (Stan- 
wood, Hist, of Presidency, p. 240) : 

Resolved, That our fathers ordained the Constitution of the United 
States in order, among other great national objects, to establish justice, 
promote the general welfare, and secure the blessings of liberty, but 
expressly denied to the Federal Government which they created, all 
constitutional power to deprive any person of life, liberty or property 
without due legal process. 

Resolved, That, in the judgment of this convention, Congress has no 
more power to make a slave than to make a king; no more power to 
institute or establish slavery than to institute or establish a monarchv. 
No such power can be found among those specifically conferred by the 
Constitution, or derived by any just implication from them. 

Resolved, That it is the duty of the Federal Government to relieve 
itself from all responsibility for the existence or continuance of slavery 
wherever the Government possesses constitutional authority to legislate 
on that subject, and is thus responsible for its existence. 

Resolved, That the true and in the judgment of this convention the 
only safe means of preventing the extension of slavery into territory 
now free is to prohibit its existence in all such territory by an act of 
Congress. 182 U. S. Rep. (Note) 297. 


Davis on Political Parties 

Mr. Davis thus speaks of some of the political parties: 

The Free-Soil party, which assumed the title of “Republican” party, 
had grown to a magnitude which threatened speedily to obtain control 
of the Government. Based on sectional opposition to the growth of 
the Southern equally with the Northern States of the Union, it had 
absorbed not only the avowed Abolitionists, but other diverse and 
heterogeneous elements of opposition to the Democratic party. Their 


Political Parties in United States 


345 


presidential candidates (Fremont and Dayton) had received, in 1856,114 
of a total of 296 electoral votes, representing 1,341,264 in a total of 
4,054,967. The elections of 1857 showed a great diminution of the Re¬ 
publican strength, and the Thirty-fifth Congress was decidedly Demo¬ 
cratic in both branches. But, during the next two years, the Kansas 
agitation, the dissensions in the Democratic party, occasioned by the 
new doctrine of squatter sovereignty, had so augmented the ranks of 
the Republicans that in the House of Representatives neither party had 
a decided majority. * The contest over the election of a Speaker was 
kept up for more than eight weeks, and finally ended in the election of 
a Republican by a majority of one vote. The balance of power had been 
held by a few members still adhering to the virtually extinct Whig and 
“American,’' or “Know-Nothing,” parties. The Senate continued Demo¬ 
cratic, but with a decreased majority. Davis on the History of the Con¬ 
federate States, 31. 

The Know-Nothing, or American party, which sprang into existence 
on the decadence of the Whig organization, based on opposition to the 
alleged overgrowth of the political influence of naturalized foreigners 
and the Roman Catholic Church, had but a brief duration, and, after 
the presidential election of 1856, declined as rapidly as it had arisen. 

The doctrine of squatter sovereignty, which soon disintegrated the 
Democratic party, is supposed to have been first suggested by General 
Cass, in 1847; but it was not until after the passage of the Kansas- 
Nebraska Bill, in 1834, tha^t it was fully developed under the plastic and 
constructive genius of Hon. Stephen A. Douglas, of Illinois. Logically 
carried out, the theory of “squatter” or “popular sovereignty” bestowed 
Lii territorial legislatures, the creatures of Congress, a power not vested 
in Congress itself, or in any legislature in the fully organized and 
sovereign States, as their authority is limited both by the State and the 
Federal Constitutions. 

Strange as it may seem, a theory founded on fallacies so transparent 
and leading to conclusions so paradoxical was advocated by many 
eminent and experienced politicians both in the North and in the South, 
chiefly, perhaps, under the delusive hope that it would afford a satis¬ 
factory settlement of that “irrepressible conflict” which had been de¬ 
clared. Davis on the History of the Confederate States, 32. 

The first Republican Convention, held at Chicago, May 16, 1860, to 
nominate a candidate for the Presidency. It was a purely sectional 
body. Not a single delegate represented any constituency south of 
the famous political line of 36° 30'. Contrary to all precedent, both 
candidates were selected from the North. Mr. Lincoln, the candidate 
for the Presidency, had publicly announced that the Union “could not 
permanently remain half slave and half free.” A fictitious issue was 
presented. The most fanatical foes of the Constitution were satisfied 
that their ideas would be the rule and guide of the party. 

Meanwhile the Democratic Convention, which had met at Charleston 
on April 23rd, had found it impossible to agree on a platform, and 
hence no nomination was possible. The Convention was adjourned, to 
reassemble at Baltimore, where, again, the two wings of the party dis¬ 
agreed and held separate Conventions—the conservative (or State- 
rights) wing nominating John C. Breckenridge, of Kentucky, then Vice- 
President of the United States, for President; and Senator Joseph Lane, 
of Oregon, for Vice-President; and the advocates of the doctrine of 


346 


Political Parties in United States 


“popular sovereignty” nominating Stephen A. Douglas, of Illinois, for 
President; and Herschel V. Johnson, of Georgia, for Vice-President. 
Still another Convention, held at Baltimore, on May 19th, nominated 
John Bell, of Tennessee, for President, and Edward Everett, of Massa¬ 
chusetts, for Vice-President. This third Convention was composed of 
delegates from all the States, representing those who still adhered to 
the Whig party and the “American” organization. It repudiated all 
sectional and geographical issues, and pledged itself to “maintain, 
protect, and defend those great principles of public liberty and na¬ 
tional safety against all enemies.” It declared it to be the part of 
patriotism and of duty to recognize no political principle other than 
the Constitution of the country, the Union of the States, and the en¬ 
forcement of the laws. It totally ignored the territorial question. 

Thus, four distinct parties presented rival tickets and platforms to 
the people of the United States: 

Briefly, the Constitutional-Union, or Bell-Everett, party advocated, 
in general terms, adherence to the Constitution, the Union, and the 
enforcement of the laws. 

The Democratic-Conservative, or Breckenridge-Lane party asserted 
the right of a people of a Territory, on emerging from a territorial con¬ 
dition to that of a State, then to determine what should be the nature 
of their domestic institutions. 

The party of popular sovereignty, or Douglas Johnson party, affirmed 
the right of the people of a Territory, in their territorial condition, to 
determine their organic institutions, independently of the consent of 
Congress, and denied the power or duty of Congress to protect the 
persons or property of minorities in such territories against the action 
of majorities. 

The Republican, or Lincoln-Hamlin, party insisted that “slavery 
can exist only by virtue of municipal law”; that there was no law for 
it in the Territories, and that “Congress was bound to prohibit it or 
exclude it from any and every Federal Territory.” In other words, it 
asserted the right and duty of Congress to exclude the citizens of half 
the States of the Union from territory belonging in common to all, 
unless on condition of the abandonment or sacrifice of property dis¬ 
tinctly and specifically recognized as such by the compact of Union. 
Davis on the Confederate States, 3^-5. 

The names adopted by political parties in the United States have not 
always been strictly significant of their principles. The old Federal 
party inclined to nationalism, or consolidation, rather than federaliza¬ 
tion, of the States. On the other hand, the party originally known as 
Republican, and afterward as Democratic, can scarcely claim to have 
been distinctly or exclusively such in the primary sense of these terms, 
inasmuch as no party has ever avowed opposition to the general prin¬ 
ciples of Government by the people. The fundamental idea of the Dem¬ 
ocratic party was that of the sovereignty of the States and the Federal, 
or Confederate, character of the Union. Other elements have entered 
into its organization at different periods, but this has been the vital, 
cardinal, and abiding principle on which its existence has been perpet¬ 
uated. The Whig, which succeeded the old Federal party, though by 
no means identical with it, was, in the main, favorable to a strong cen¬ 
tral government, therein antagonizing the trans-Atlantic traditions con¬ 
nected with its name. The “Know-Nothing,” or “American,” party. 


Need of Political Parties 


347 


which sprang into existence on the decadence of the Whig organization, 
based upon opposition to the alleged overgrowth of the political influ¬ 
ence of naturalized foreigners and of the Roman Catholic Church, nad 
but a brief duration, and after the Presidential election of 1856 declined 
as rapidly as it had arisen. Davis on the Rise and Fall of the Con¬ 
federate Government, Vol. I, 35. 

The “Free-Soil,” which had now assumed the title of “Republican” 
party, had grown to a magnitude which threatened speedily to obtain 
entire control of the Government. Based, as has been shown, upon sec¬ 
tional rivalry and opposition to the growth of the Southern equality 
with the Northern States of the Union, it had absorbed within itself 
not only the abolitionists, who were avowedly agitating for the destruc¬ 
tion of the system of negro servitude, but other diverse and heterogene¬ 
ous elements of opposition to the Democratic party. In the Presiden¬ 
tial election of 1856, their candidates (Fremont and Dayton) had re¬ 
ceived 114 of a total of 296 electoral votes, representing a popular vote 
of 1,341,264 in a total of 4,053,967. Davis on the Rise and Fall N of the 
Confederate Government, Vol. I, 36. 

Since the war between the states, the contests have been 
between the Democratic and Republican parties. The Prohibi¬ 
tion party has on several occasions placed candidates in the 
field for president and vice-president, so has the Populist and 
Social parties; but their strength as parties was negligible. 
Their strength has been most effective when amalgamated with 
the two great parties. 

The Populist party was the outgrowth of societies or organi¬ 
zations of farmers for the purpose of eliminating the mer¬ 
chants, or middlemen, who profiteered on the products of the 
farmers and manufacturers. The idea was to have the pro¬ 
ducer and consumer to deal directly each with the other. 
These societies were at first strictly non-political, or professed 
so to be. They at first assumed the name of the Grangers, then 
Farmers’ Alliance. They finally drifted into or were trans¬ 
formed into political parties, at first called Populist party, then 
Jeffersonian Democrats. From 1880 to 1895 the parties thrived 
and were strong in the Southern and Western states. They 
elected their tickets in many states as to state and county offi¬ 
cers, but never became very powerful in national politics. 

Political Parties a Need 

Mr. Madison thus portrays the necessity of parties in gov¬ 
ernment : 

In every political society parties are unavoidable. A difference of 
interests, real or supposed, is the most natural and fruitful source of 
them. The great object should be to combat the evil: 1. By establish¬ 
ing a political equality among all. 2. By withholding unnecessary op- 


348 


Politics of Clay and Webster 


portunities from a few to increase the inequality of property by an 
immoderate, and especially an unmerited, accumulation of riches. 
3. By the silent operation of laws which, without violating the rights 
of property, reduce extreme wealth towards a state of mediocrity, and 
raise extreme indigence towards a state of comfort. 4. By abstaining 
from measures which operate differently on different interests, and 
particularly such as favor one interest at the expense of another. 5. By 
making one party a check on the other, so far as the existence of par¬ 
ties can not be prevented nor their views accommodated. If this is not 
the language of reason, it is that of republicanism. 

In all political societies different interests and parties arise out of 
the nature of things, and the great art of politicians lies in making 
them checks and balances to each other. Let us, then, increase these 
natural distinctions, by favoring an inequality of property; and let us 
add to them artificial distinctions, by establishing kings, and nobles, 
and plebeians. We shall then have the more checks to oppose to each 
other; we shall then have the more scales and the more weights to 
perfect and maintain the equilibrium. This is as little the voice of 
reason as it is that of republicanism. 

From the expediency, in politics, of making natural parties mutual 
checks on each other, to infer the propriety of creating artificial parties 
in order to form them into mutual checks, is not less absurd than it 
would be in ethics to say that new vices ought to be promoted, where 
they would counteract each other, because this use may be made of 
existing vices. 4' Writings of Madison, p. 469. 

Politics of Clay and Webster 

Mr. Blaine thus compares and contrasts the lives and works 
of Mr. Clay and Mr. Webster: 

They both lived long enough to see the work of their political life 
imperiled if not destroyed. They had held the same relation to the 
Whigs that the elder Adams and Hamilton had held to the Federalists, 
that Jefferson and Madison had held to the Republicans. Comparison 
between them could not be fairly made, their inherent qualities and 
personal characteristics differed so widely. Each was superior to the 
other in certain traits, and in our public annals thus far each stands 
unequaled in his sphere. Their points of contrast were salient and 
numerous. Mr. Clay was born in Virginia. Mr. Webster was born in 
New England. Mr. Clay was a devoted follower of Jefferson. Mr. 
Webster was bred in the school of Hamilton. Mr. Clay was an earnest 
advocate of the second war with Great Britain. Mr. Webster was its 
steady opponent. Mr. Clay supported Madison in 1812 with great 
energy. Mr. Webster threw all his strength for DeWitt Clinton. Mr. 
Clay was from the first deeply imbued with the doctrine of protection. 
Mr. Webster entered public life a pronounced free-trader. They were 
not members of the same political organization until after the destruc¬ 
tion of the old Federal party to which Mr. Webster belonged, and the 
hopeless divisions of the old Republican party to which Mr. Clay be¬ 
longed. They gradually harmonized towards the close of Monroe’s 
second term, and became firmly united under the administration of 
John Quincy Adams. Blaine's Twenty Years in Congress, p. 106. 


“Tammany Hall;” Anarchism 


349 


In all the discussions of the Senate in which constitutional questions 
were involved, Mr. Clay instinctively deferred to Mr. Webster. In the 
parliamentary debates which concerned the position of parties and the 
fate of measures, which enchained the Senate and led captive the people, 
Mr. Clay was facile princeps. Mr. Webster argued the principle. Mr. 
Clay embodied it in a statute. Mr. Webster’s speeches are still read 
with interest and studied with profit. Mr. Clay’s speeches swayed 
listening senates and moved multitudes, but reading them is a disap¬ 
pointment. Between the two the difference is much the same as that 
between Burke and Charles James Pox. Fox was the parliamentary 
debater of England, the consummate leader of his party. His speeches, 
always listened to and cheered by a crowded House of Commons, per¬ 
ished wth their delivery. Burke could never command a body of fol¬ 
lowers, but his parliamentary orations form brillant and permanent 
chapters in the political literature of two continents. Blaine's Twenty 
Years in Congress , p. 107. 

“Tammany Hall” in Politics 

Tammany Hall grew out of the Columbian Society, formed in 1789 
by William Mooney, an Irish-American Whig. The purposes of the 
society were at first social, though from the very beginning it strove 
for political influence. In 1805 it changed its name to the “Tammany 
Society.” This name ‘was borrowed from an Indian chief Tammanend, 
and the society was organized in Indian fashion. The society was com¬ 
posed of thirteen “tribes,” with twelve “sachems” or directors, a “grand 
sachem” or president, a “sigamore” or master of ceremonies and a 
“wiskinski” or doorkeeper. With the change in name came a change 
in purpose. From a social club it developed into a political organiza¬ 
tion. Bryce's American Commonwealth, Vol. II, 339-40. 

Anarchism 

A kind of social propaganda or doctrine based on the aboli¬ 
tion of all constitutional authority, government and law. It 
teaches or professes to believe that the individual should be 
free from governmental control. In its political and moral 
theories, teachings and creeds, it is the antithesis of socialism. 
Anarchy demands the destruction of the State by force and 
violence, if necessary, while socialism would use the State for 
the purpose of reorganizing society, to attain the end of social¬ 
ism. It would have the State, or the whole of society, to own 
and control all property, or controlling all engaged in the in¬ 
dustrial world-work. Anarchy demands absolute and unre¬ 
strained liberty of the individual. One of the sayings of one 
of the apostles of Anarchy was that “liberty without (econom¬ 
ic) socialism is equivalent to privileged injustice, and that 
socialism without (anarchial) liberty amounts to both slavery 
and brutality. 


350 


Anarchism 


Socialism is well organized. Anarchy, from its very nature, 
is disorganized, absolute independence and individualism, each 
anarchist being a law unto himself. Anarchy, because of its 
lawless character and teachings, is promoted and spread by 
secret meetings, teachers and publishers. Their first aim seems 
to be to assassinate the crown heads and even the rulers and 
high officers of republics. Soeial democracy has expelled and 
dissolved bands and societies which professed to be socialistic 
because of their nefarious teachings and practices, such as 
the I. W. WPsUn the United States. In some countries, how¬ 
ever, the anarchist element predominates that of the socialistic 
Democracy, such seems to be the case in Italy, Spain, Greece 
and Latin America.—The New International Encyclopedia. 

Anarchy, in all periods, has demanded the abolition of the 
State, or all Government, and all privately owned or controlled 
property under force of law, and to enact a new order of so¬ 
ciety upon a basis of individual interests, a union of Egoists, or 
at best a mere federation of commoners. It has a doctrine en¬ 
tirely different from Socialism, called the “propaganda of the 
deed,” the use of violence, dynamite, and bombs, to destroy the 
rulers and government property. Two of these deeds are well 
known in the United States. The Haymarket Explosion in 
Chicago, May 4, 1886. The other was the assassination of Pres¬ 
ident McKinley at Buffalo, N. Y., Sept. 6, 1901, by Czolgoscz. 
In 1902 Congress prohibited the immigration into the United 
States of all persons belonging in or teaching the doctrine of 
Anarchism. 

Anarchism, socialism and communism all tend in the end to 
the destruction of all existing governments, whether they be 
monarchies, aristocracies, republics, or democracies. One by 
force and violence, the other by evolution, by ingrafting upon 
the existing governments scions of other teachings and belief, 
until, the original is entirely destroyed or disappears, and 
their utopian one substituted instead. 

The great faults of socialism and anarchism is that each is 
destructive and not constructive. Each seeks to obtain a com¬ 
mon level among all mankind by pulling down the high and 
not by building up the low. The doctrines are well calculated 
to destroy any kind of government, that which is good as well 
as that which is bad. 

In their creeds they profess some virtues and many vices. 
They profess no virtues of government which is not possessed 
and guaranteed by our American Constitutional Government, 


Socialism 


351 


and most of their vices are forbidden and guaranteed against 
by the American Constitution. The resultant of all their 
tenets and teachings are contrary to the laws of nature and 
Nature’s God, as well as those of all civilized governments. It 
is possible for them to destroy all civil government but they 
could never establish one which could produce or secure the 
ultimate end desired because contrary to all nature and reason. 
Their effort to this end is like a strong man trying to lift him¬ 
self by pulling at his boot straps. They forget that action is 
equal to re-action and in the opposite direction. 

Their efforts are to be feared because well calculated to de¬ 
stroy all that is in our Government that is worth preserving 
and reduce the people to a state of barbarism rather than a 
high state of civilization. Their efforts to destroy the govern¬ 
ment tends to cause the people of America to create a strong 
central Government which can crush Anarchy and control 
Socialism. They are thus assisting in destroying local self- 
government. 

Socialism 

Socialism is probably the only international political party. 
Its main object and purpose seems to be a kind of ideal 
economic system in which most all industries are to be carried 
on under social direction and for the benefit of society as a 
whole. For a long time it was closely akin to communism and 
anarchism; and in some countries, allied with both. As time 
went on these three parties or sects separated and socialism is 
now almost the reverse of anarchism. Socialism has been na¬ 
tionalism and collectivism. It, as a political party, is now 
mostly called Social Democracy. Extreme socialists, and 
anarchists, believe that all land and other property should be 
owned and controlled by society as a whole, and each individ¬ 
ual given a part of the rents, profits or usufructs thereof. The 
more conservative, however, do not insist upon the communism 
of all property, but only of the chief kinds, that which is now 
affected by a public trust or use. All contend that there should 
be such collective ownership and control of property that it 
will dominate the world’s work. Socialism contends that all 
values depend upon labor, and that all profits from property 
or industries should be divided by society among the people. 

Socialism demands collective management of all industries 
and all associated together and a distribution of all increase 
and profit by means of some common authority. Communism 


352 


Socialism 


would' wipe out all boundaries of nations or states and substi¬ 
tute therefor a universal fraternity among all the tribes of the 
world. Socialism does not worship patriotism, nor seek to 
cultivate it. It teaches universal brotherhood of men. It 
claims that wars are declared and carried on for the benefit of 
a small class of people, who are engaged in military affairs and 
industries, which, of necessity, must thrive during and on ac¬ 
count of wars. There are, however, certain wars which they 
claim to be necessary, such as may be necessary to consolidate 
or to force all nations into one common brotherhood of social¬ 
ism. Socialism therefore abhors and opposes toilers of one 
nation fighting and killing the toilers of other nations on ac¬ 
count of purely national differences, which can not benefit the 
toilers of either, but strengthen the military and aristocratic 
classes, which live and thrive on wars, which always kills many 
and impoverishes all toilers. 

At one time, socialism, like anarchism, despised all kinds of 
government, state or nation, which was to rule the people. 
Both parties, however, profess to believe in some kind of organ¬ 
ism, but it is only for the purpose of destroying or changing 
existing governments and to establish socialism, communism 
and anarchism. All three oppose public or official authority, 
and believe that the people can form some kind of mutual aid 
federations. Anarchists believe in destroying existing gov¬ 
ernments by force, while socialism believes in destroying them 
by evolutionary methods. Socialism once opposed marriage as 
oppressive of women, socialists once taught that the only bond 
which ought to tie man and woman was mutual love one for 
the other, and if that ceased, or was weakened, then the rela¬ 
tion of man and wife should cease, and a new union formed 
with others. This doctrine is not now advocated by the ma¬ 
jority of socialists. Socialism has also undergone radical 
changes as to religion. Religion is now held to be a private 
matter with which the public is not concerned. 

Socialism was formerly utopian, it has recently professed to 
discard this and become scientific. Few political Economists 
are socialists. Their theories of government, as a rule, do not 
agree. Political economists believe that the evils outweigh and 
outnumber the good to come of unified production. Few social¬ 
ists contend that agriculture could or should be unified, as 
claimed for other industries. Socialism presupposes capital¬ 
ism, as agriculture has not yet been capitalized, this is probably 
why agricultural labor has not been socialized as other indus- 


Socialism 


353 


tries. Socialism is opposed to militarism. It teaches that the 
chief causes of war are economic, to control the commerce of 
the world, and the industries of the world which feed com¬ 
merce. Jefferson held to these views to state the case strongly 
against the then strongest nation on the earth, which then de¬ 
sired to control the commerce of the world, he said it would 
sacrifice the liberties of everything on earth in order to land 
one more ship load of wheat at its ports. Wherever organized 
capital exists, there is found socialism. Socialism is now or¬ 
ganized into a political party known as the Social Democracy. 
It is more powerful in Germany than in any other nation. It 
was there formed but has spread to every other nation. It is, 
however, international, it seeks not to establish the govern¬ 
ment of any particular nation, but to destroy that of all, and 
set up one of its own, for all nations and peoples. It does not 
teach patriotism, it barely professes it in a small degree. Like 
most all political parties, it advocates some good creeds which 
would improve most any government. Many of its creeds are 
bad, and wholly impracticable. Taken as a whole, even as now 
bettered and tempered, the government, or association of man¬ 
kind, sought to be established is yet largely utopian and im¬ 
practicable. It may succeed in destroying all existing govern¬ 
ments, but can never establish the kind it proposes and desires. 
If it ever succeeds in destroying the existing governments, it 
will be by revolutions, which will end in anarchy. All the doc¬ 
trines of socialism that are practical and worth preserving are 
taken from the principles of American Constitutional Govern¬ 
ment. The government or association of Socialism desired to 
be established is contrary to the laws of nature and hence it 
could not long exist. 

The one chief fault in the association it would establish is that 
it gives the people no protection against themselves. This is as 
necessary as to protect them from the government itself. This 
is the crowning virtue of American Constitutional Government, 
it protects the people against both the government and them¬ 
selves. One is as necessary as the other. Without the one the 
government will become monarchial and despotic; without the 
other, it will become anarchial; the latter is as despotic and 
more cruel than the other. 

The American Constitutional Government is midway between 
these two extremes. As we centralize and increase the powers 
of the Government, we tend towards a monarchy and despot- 


354 


Socialism 


ism; as we tend towards depriving the government of all pow¬ 
er, we tend towards anarchy, which is equally despotic and 
cruel. 

The following are among the demands of the German Social 
Democracy, many and the best of which are now secured and 
guaranteed to the people of the United States, by their writ¬ 
ten, State and Federal Constitution: 

(1) Universal, equal, and direct suffrage by ballot, in all elections, 
for all subjects of the Empire over twenty years of age, without distinc¬ 
tion of sex; proportional representation and, until this system has been 
introduced, fresh division of electorial districts by law after each 
census; two years’ duration of the Legislature; holding the elections 
on a legal day of rest; payments of the representatives elected; re¬ 
moval of all restrictions upon political rights, except in the case of 
persons under age. 

(2) Direct legislation by the people by means of the right of initia¬ 
tive and of veto; self-government by the people in Empire, state, 
province, and commune; election of magistrates by the people, with the 
right of holding them responsible; annual vote of the taxes. 

(3) Universal military education; substitution of militia for a stand¬ 
ing army; decision by the popular representatives of questions of peace 
and war; decision of all international disputes by arbitration. 

(4) Abolition of laws which restrict or suppress free expression of 
opinion and the right of meeting or association. 

(5) Abolition of all laws which place the woman whether in a 
private or public capacity, at a disadvantage as compared with the man. 

(6) Declaration that religion is a private matter; abolition of all 
appropriations from public funds for ecclesiastical and religious ob¬ 
jects; ecclesiastical and religious bodies are to be regarded as private 
associations which order their affairs independently. 

(7) Secularization of education; compulsory attendance at public 
national schools; free education, free supply of educational apparatus, 
and free maintenance to children in schools, and to such pupils, male 
and female, in higher educational institutions, as are. judged to be 
fitted for further education. 

(8) Free administration of the law and free legal assistance; ad¬ 
ministration of the law by judges elected by the people; appeal in 
criminal cases; compensation to persons accused, imprisoned, or con¬ 
demned unjustly; abolition of capital punishment. 

(9) Free medical assistance, and free supply of remedies; free 
burial of the dead. 

(10) A graduated income and property tax to meet all public ex¬ 
penses which are to be raised by taxation; self-assessment; succession 
duties, graduated according to the extent of the inheritance and the 
degree of relationship; abolition of all indirect taxation, customs du¬ 
ties, and other economic measures which sacrifice the interests of the 
community to the interests of a privileged minority. 

For the protection of labor, the German Social Democrats also de¬ 
mand, to begin with: 

(1) An effective national and international system of protective 
legislation on the following principles: 


Socialism 


355 


(a) The fixing of a normal working day, which shall not exceed 
eight hours. 

(b) Prohibition of the employment of children under fourteen. 

(c) Prohibition of night work, except in those branches of industry 
which, from their nature and for technical reasons or for reasons of 
public welfare, require night work. 

(d) An unbroken rest of at least thirty-six hours for every work¬ 
man every week. 

(e) Prohibition of the truck system. 

(2) Supervision of all industrial establishments, together with the 
investigation and regulation of the conditions of labor in the town and 
country by an Imperial labor department, district labor bureaus, and 
chambers of labor; a thorough system of industrial sanitary regulation. 

(3) Legal equality of agricultural laborers and domestic servants 
with industrial laborers; repeal of the laws concerning masters and 
servants. 

(4) Confirmation of the rights of association. 

(5) The taking over by the Imperial government of the whole sys¬ 
tem of workmen’s insurance, though giving the workmen a certain 
share in its administration. The New International Encyclopedia, Vol. 
21, 238-9. 

Many of the above tenets declare virtues, and not vices, in 
any government. Some, however, are vices, which would de¬ 
stroy any government or association and result in a condition 
of society little better than anarchy, as it is popularly under¬ 
stood. The end and condition of government which the social¬ 
istic party hopes to attain and the means to attain it are prob¬ 
ably best described by Mr. Bellamy, in his book, Looking Back¬ 
ward, from 2000 to 1887. 

This book is an interesting and intensely romantic narrative, 
and well sets forth the reforms which the Social and Com¬ 
munist, hope to attain when their teachings and doctrines are 
adopted. The conditions so well described by Mr. Bellamy’s 
Dr. Leetee are purely idealistic and unnatural. That Mr. 
Bellamy’s Mr. West should have slept for one hundred and 
thirteen years and then be awakened by the great grand daugh¬ 
ter of his fiance of the other century, and he and she renew the 
old love affair and become engaged is just as natural and just 
as much in accord with the laws of nature as is the condi¬ 
tions of the society and government which Dr. Leetee, the 
father of the last fiance, described to Mr. West. The trouble 
with all these Socialistic forms of government and conditions 
of society, they are wholly utopian, unnatural and unattain¬ 
able. Human nature is now and ever will be what it has been 
for two thousand years, and these conditions pictured are not 
in accord with human nature. 


356 


Socialism 


Judge Dillon has said that there may be some reasons for 
Socialism, Communism and even Anarchism among the people 
of the Old World but that there is none in the United States. 
Here every one may be the owner of property and in possession 
of liberty and hence is in necessity of government and law. He 
is secured both in his property and his liberty. Communism, 
Socialism and Anarchism are legitimate offsprings of Aristoc¬ 
racy, Casts and Despotism, forced on the people by hunger 
and despair. Here such ideas are baneful exotics, which have 
taken deep root, and thus far have attracted little notice except 
when their wild or bad adherents seek to propagate them by 
illegal violence or murder. 

Sidney Smith has said that as late as the nineteenth century 
the laws of the Old World, even of the best nations and states, 
were so oppressive as to drive the people to such thoughts as 
Socialism and Anarchy. He said that in 1803 the game laws 
were so oppressive that for every ten pheasants which fluttered 
in the wood, one English peasant was rotting in jail. Prison¬ 
ers were then tried for their lives without counsel, and the 
punishment was cruel and vindictive. The laws of debt knew 
no clemency, exemption nor redemption. Not a murmur was 
allowed against any abuse that was committed. To say a word 
by mouth or press against such cruel punishment was to be con¬ 
demned of treason. 

Hon. Henry B. Brown, of the United States Supreme Court, 
in an address before the American Bar Association in 1893, 
spoke as follows on the subject of property rights and their 
distribution: 

The right of private property, which marks the first step in the 
emergence of the civilized man from the condition of the utter savage, 
has been the cause of so much of envy, hatred, malice and all un¬ 
charitableness that the whole system is denounced by a certain school 
of theorists as not only an error; but a fraud; in short, that property 
is robbery; that the State is or ought to be the sole proprietor, and the 
individual only the recipient of its bounty. 

By another school it is insisted that, as nearly everything we con¬ 
sume or enjoy is the product of labor, the laborer is entitled to the 
product. The logical consequence is that the capitalist has few, if any, 
rights which the laborer is bound to respect. Exactly what his rights 
are upon this theory no one has as yet had the hardihood to proclaim. 

These conflicts between capital and labor are not of recent date. 
Indeed, they have occurred from a time whence the oldest historical 
records run not to the contrary. One of the earliest recorded annals of 
the race is that of the exodus of the Israelites from Egypt, which seems 
to have been a national protest against the oppression of capital, and 
to have possessed the substantial characteristics of a modern strike. 


Socialism 


357 


How far this revolt was due to the order of Pharaoh that the Israelites 
should provide their own straw to make bricks, and how far to the 
hereditary aversion of the Jewish race to manual labor, we shall not 
know, at least until we hear the Egyptian side of the story. Henry B. 
Brown, in Report of American Bar Association, Vol. 16, 213-14. 

We are told, however, by a certain school of political philosophers 
which, for the want of a better name, we will call the Henry George 
school, that in progress of modern social life the gulf between the rich 
and the poor is constantly growing wider—in other words, that the rich 
are growing richer, while the poorer are becoming poorer. If this were 
true, it would doubtless afford just cause for alarm, but while it sounds 
well as an aphorism, unfortunately, or rather fortunately, it is wholly 
untrue. While, in this country, at least, private fortunes are larger 
than they have ever been before, the condition of the laboring class has 
improved in an equal ratio. Henry B. Brown, in Report of American 
Bar Association, Vol. 16, 219. 

Judge Brown, in speaking of the schemes for the distribu¬ 
tion of property, says: 

The most radical and at the same time the most futile of these 
schemes is what is known as Socialism, by which we understand the 
total abolition of private property and the ownership of all property 
by the State—the individual retaining only the right to ihe enjoyment 
of his proportionate share. The entire community thus becomes in 
effect a great partnership, in which each partner is expected to con¬ 
tribute his proportion of labor, and to receive an equal share in its 
products. As a practical question, in this country at least, socialism 
may be disposed of in a few words. As it involves a practical confisca¬ 
tion of private property, it could only be established legally by an 
amendment to the Constitution of the State, which would require the 
assent of a majority of the voting population. It would probably also 
require an amendment to the Constitution of the United States, which 
could only be adopted by the consent of three-fourths of the States. 
Either of these contingencies is so remote that it may be safely rele¬ 
gated to the region of impossibilities. It is equally improbable that 
socialism can ever be imposed by force, since the owners of property 
or their dependents are not only in the majority numerically, but, by 
reason of such ownership, wield a moral and physical influence out of 
all proportion to their numbers. Socialism, therefore, while furnishing 
an interesting field for discussion, is not likely for another century at 
least to present itself as a scheme for practical consideration. Henry B. 
Brown, in Report of American Bar Association, Vol. 16, 225-6. 

Upon the whole, socialism, so far from serving as a remedy for the 
evils which afflict society, would only aggravate them tenfold; so far 
from being an advance, it would be a distinctly retrograde movement, 
a return to the barbarous ideas of our remote ancestors. 

There is another coarser form of social regeneration known as 
anarchism, of which little need be said. Anarchism openly avows its 
intent to destroy all existing social institutions by force, while offering 
nothing to take their place. Its aim is not to reconstruct society, but 
simply to destroy it. Threats are its sole argument, dynamite its prin¬ 
cipal weapon. Its motive is hatred of the higher classes, not love of 


358 


Socialism 


the lower. So far, no writer of distinction has been found bold enough 
to advocate its claims; indeed, it does not condescend to argue; it 
simply strikes. Happily, its disciples are few, and, to the credit of the 
American character, let it be said, almost exclusively aliens. Society 
has nothing to fear from them except so far as it fears the dangerous 
animal or the venomous reptile. They are fit subjects for the applica¬ 
tion of the scriptural maxim that those who take the sword shall perish 
by the sword. Those who fight with fire must expect to be fought with 
fire. Society is neither meek nor long-suffering and will rigorously 
exact an eye for an eye and a tooth for a tooth. Those who openly defy 
and trample upon the Constitution and laws have no moral right to 
their immunities and no just cause to complain if society makes war 
upon them as mercilessly as they war upon society. Henry B. Brown, 
in Report of American Bar Association, Yol. 16, 230. 

Perhaps it may be proper in this connection to say a word upon the 
proposed naturalization of land or ownership of land by the State, 
which a new school of political theories would seek to accomplish by 
the imposition of all taxes upon land in its unimproved state. This is 
commonly known as the Single Tax theory. There is certainly some¬ 
thing to be said in its commendation. It would have a strong tendency 
to encourage the purchase of land for actual use and the erection of 
valuable buildings, or other improvements, since they would be exempt 
from taxation. It would put a complete stop to the purchase of lands 
for speculative purposes, which doubtless operates to retard the growth 
of our cities and towns and to the leaving of large amounts of vacant 
and unimproved property within our municipal limits. Builders are 
thus driven out of town to find lots suitable to their means, where if 
land were free or comparatively so, they would prefer a location upon 
the nearest unimproved lot. How far it would tend to improve the rela¬ 
tions between capital and labor, to obviate strikes and to open new 
avenues for employment and for trade is an open question. My im¬ 
pression is that its advantages in these particulars have been greatly 
overestimated. Henry B. Brown, in Report of American Bar Associa¬ 
tion, Yol. 16, 23It. 

Judge U. M. Rose says of Socialism: 

No one complains so much of officials as the socialist; and yet he 
proposes a plan that would cover the land with officials like the locusts 
of Egypt. Such an officialism would establish a slavery more terrible 
and exasperating than any that has ever been known, which would have 
no other merit than that it could not last for more than a single day. 
As there would be no large rewards without infringement on the sacred 
principle of equality, the mainspring of enterprise would be broken. 
Bad as the world is, there is still room for congratulation that the 
schemes of the socialist, involving a life without ambition and without 
hope, a mere existence of dreary monotony, only enlivened by the 
vexation caused by petty officials, is something beyond the range of 
possibility; a conclusion that rests upon experiment as well as induc¬ 
tion, for socialism has been often tried in small and homogeneous 
communities made up of men strong in the faith, and has as often 
failed ignominiously. U. M. Rose in Report of American Bar Associar 
tion, Yol. 16, 308. 


Communism 


359 


Communism 

Communism, is a political society or creed, which believes in 
and teaches an abolition of all private property and a vesting 
of title in all the people as a common whole, or as tenants in 
common, the needs of each to be supplied from the increase 
profits or usufruct of the whole. It is the economical basis of 
both anarchy and socialism. Like anarchy and socialism, it is 
utopian and visionary. The followers of the three societies be¬ 
lieve that the whole world can be formed into a common broth¬ 
erhood or society in which the brotherhood or society shall 
own and control all the property for the common good of each. 
They thus believe in a state or condition without government 
or law, in which each shall be fed, clothed and educated, cared 
for during life, and buried when dead, out of a common store¬ 
house. There has sprung up many societies, sects, and colonies 
in the United States which attempted to teach and to lead to 
this doctrine. Like all other utopian doctrines, they thrive for 
a while, but soon dissolve and disappear. As a rule, the lead¬ 
ers and disciples who profess and teach such dogmas are uto¬ 
pian dreamers who, of course, deceive and mislead many ig¬ 
norant people, especially those whom poverty has oppressed, 
and those who hope to live without work. 

The great evil of anarchy, communism, and socialism is that 
they each tend to destroy all individuality and personal ambi¬ 
tion. They seek to establish uniformity by pulling down and 
not in building up. They stifle and throttle all competition, 
m trades, business and husbandry. It creates in each in¬ 
dividual the desire to do as little as possible, and get as much 
as he can from the common store-house. Their creeds are con¬ 
trary to all scientific and historical teachings as to what is 
necessary to produce a good government or a great man. If 
the world should accept and follow their teachings, humanity 
would retrograde instead of progress, and in a few genera¬ 
tions, our high civilization would be little better than savagery 
and barbarism, education would be ignorance, and religion 
idolatry. 

Of course, the leaders and teachers of anarchy, communism 
and socialism do not believe that such would be the result of 
their philosophy and creeds; but others contend it would be¬ 
cause they lead inevitably to destruction and not to creation, 
level the whole, by pulling down, the high and not in building 
up the low, destroy all individual ambition, and take from 


360 


Revolution of Rhode Island 


every one the desire or hope of ever excelling others. Do as 
little as you can but get as much as possible. This is contrary 
to the laws of Nature and of God, as well as to the laws of all 
great civilized nations. The doctrines are pernicious and de¬ 
structive. 


The Right of Revolution. 

The right of revolution is the inherent right of a people to cast out 
their rulers, change their polity, or effect radical reforms in their sys¬ 
tems of government or institutions, by force or a general uprising, 
when the legal and constitutional methods of making such changes have 
proved inadequate, or so obstructed as to be unavailable. 1 Black, on 
Constitutional Law, 11. 

In the presence of revolution, law is impotent. It is indeed, a great 
task of practical politics to bring back revolutionary movements as soon 
as possible into the regular channels of constitutional reform. There 
can be no right of revolution, unless exceptionally; it can only be justi¬ 
fied by that necessity which compels a nation to save its exercise or to 
secure its growth where the ways of reform are closed. The Constitu¬ 
tion is only the external organization of the people, and if, by means 
of it, the State itself is in danger of perishing, or if vital interests of 
the public weal are threatened, necessarily knows no law. 2 Black on 
Constitutional Law, 12. 


Revolution of Rhode Island 

When the separation from England took place, Rhode Island did not, 
like the other States, adopt a new Constitution, but continued the form 


UThe war between the States from 
1861-65 was really a revolution to de¬ 
cide by force as to whether or not the 
institution of slavery should be abol¬ 
ished. The constitutional government 
then authorized it. The majority of 
the States, but not three-fourths of 
them, desired the abolition of the in¬ 
stitution. The majority controlling 
the Legislature and executive depart¬ 
ments of the government denied to the 
minority their constitutional rights as 
to slavei’y and the minority would not 
submit and seceded which was in 
fact and in truth a revolution. They 
failed and slavery was abolished, by 
force of arms as a war measure. It 
required an amendment of the Consti¬ 
tution before the institution was 
abolished lawfully. That this amend¬ 
ment was necessary shows the minori¬ 
ty was not wrong in their conten¬ 
tions as to their constitutional rights. 
The pity is that the Constitution 
could not have been amended with¬ 
out the war. 

The Southern States chose to call 
this action secession rather than revo¬ 
lution because they claimed and desired 
to stand by and live up to the Con¬ 
stitution, but were denied the privi¬ 
lege by the majority of the Northern 
States. The position of the Northern 
States was that the Union could not 


be preserved, half slave, and half 
free, that those States had abolished 
slavery and that the Southern States 
could if they would, but that they 
would not. That the Union must be 
preserved if the Constitution had to be 
violated so to do. That slavery must 
be abolished peaceably if possible, but 
forcibly if necessary. The Northern 
States therefore fought to preserve the 
Union, the Southern States to preserve 
the Constitution. The Northern States 
had no constitutional right to abolish 
slavery in the Southern States or to 
coerce the Southern States back into 
the Union. They did both by force 
of arms, and contrary to the Consti¬ 
tution. 

2 In the war between the States, the 
Northern States sought to preserve 
the Union in spite of the Constitution. 
The Southern States to preserve the 
Constitutions, State and Federal. The 
Union was preserved : but the Consti¬ 
tution had to be amended to accord 
with the views of the Northern 
States. If me result of war had been 
different, the Federal Constitution 
would still have required amendment 
in order to give the Federal Govern¬ 
ment power to have prohibited slavery 
in any of the States. 


Revolution of Rhode Island 


361 


of government established by the charter of Charles II. in 1663; mak¬ 
ing only such alterations, by acts of the legislature, as were necessary 
to adapt it to their condition and rights as an independent State. It 
was under this form of government that Rhode Island united with the 
other States in the Declaration of Independence, and afterwards rati¬ 
fied the Constitution of the United States and became a member of 
this union. 

In this form of government, no mode of proceeding was pointed out 
by which amendments might be made. It authorized the legislature 
to prescribe the qualification of voters, and in the exercise of this 
power the right of suffrage was confined to freeholders, until the 
adoption of the Constitution of 1843. 7 How., 35. 

The people became dissatisfied with the charter government par¬ 
ticularly with the restriction upon the right of suffrage. The people 
addressed memorials to the legislature calling for a change, but none 
were authorized by the law-making body. The people called a conven¬ 
tion by voluntary meetings and framed a Constitution and provided 
for submitting it to the people for ratification. 

Upon the return of the votes, the convention declared that the Con¬ 
stitution was adopted and ratified by a majority of the people of the 
State, and was the paramount law and Constitution of Rhode Island. 
And it communicated this decision to the government under the charter 
government, for the purpose of being laid before the legislature; and 
directed elections to be held for a governor, members of the legislature, 
and other officers under the new Constitution. These elections accord¬ 
ingly took place, and the governor, lieutenant-governor, secretary of 
state, and senators and representatives thus appointed, assembled at 
the city of Providence on May 3, 1842, and immediately proceeded to 
organize the new government, by appointing the officers and passing 
the laws necessary for that purpose. 

The charter government did not, however, admit the validity of 
these proceedings, nor acquiesce in them. On the contrary, in January, 
1842, when this new Constitution was communicated to the governor, 
and by him laid before the legislature;—it passed resolutions declaring 
all acts done for the purpose of imposing that Constitution upon the 
State to be an assumption of the powers of government and of the 
people at large; and that it would maintain its authority and defend 
the legal and constitutional rights of the people. 7 How., 36. 

But, notwithstanding the determination of the charter government 
and to those who adhered to it, to maintain its authority, Thomas W. 
Dorr, who had been elected governor under the new Constitution, pre¬ 
pared to assert the authority of that government by force, and many 
citizens assembled in arms to support them. The charter government 
thereupon passed an act declaring the State under martial law, and at 
the same time proceeded to call out the militia, to repel the threatened 
attack, and to subdue those who were engaged in it. In this state of 
the contest, the house of the plaintiff, who was engaged in supporting 
the authority of the new government, was broken and entered in order 
to arrest him. The defendants were, at the time, in the military 
service of the old government, and in arms to support its authority. 

It appears, also, that the charter government, at its session of Jan¬ 
uary, 1842, took measures to call a convention to revise the existing 
form of government and after various proceedings, which it is not 


362 


The Act and History of Nullification 


material to state, a new constitution was formed by a convention elected 
under the authority of the charter government, and afterwards adopted 
and ratified by the people; the times and places at which the votes were 
to be given, the persons who were to receive and return them, and the 
qualification of the voters, having all been previously authorized and 
provided for by law passed by the charter government. This new gov¬ 
ernment went into operation in May, 1843, at which time the old gov¬ 
ernment formally surrendered all its powers; and this Constitution 
has continued ever since to be the admitted and established govern¬ 
ment of Rhode Island. 7 How., 37. 

The course of Rhode Island was mainly governed by the considera¬ 
tion that her superior advantages of location, and the possession of 
what was supposed to be the best harbor on the Atlantic coast, should 
not be subjected to the control of a Congress which was by that instru¬ 
ment expressly authorized “to regulate commerce with foreign nations 
and among the several states,” and which also declared that “no prefer¬ 
ence shall be given by any regulation of commerce or revenue to the 
ports of one State over those of another, nor any vessel bound to or 
from one State to be obliged to enter, clear, or pay duties in another.” 

That the spirit which actuated Rhode Island still exists, and is found 
in other States of the Union, may be inferred from the fact that at 
no time since the formation of the Union has there been a period when 
there were not to be found in the statute-books of some of the States 
acts passed in violation of this provision of the Constitution, imposing 
taxes and other burdens upon the free interchange of commodities, dis¬ 
criminating against the productions of other States, and attempting 
to establish regulations of commerce which the Constitution says shall 
only be done by the Congress of the United States. 135 U. 8., 728. 

The Act of Nullification 

The following is the Act of Nullification, as declared in an 
address by the people of South Carolina, to the people of the 
United States: 

We, the people of South Carolina assembled in Convention in our 
sovereign capacity, as one of the parties to the compact, which formed 
the Constitution of the United States, have declared the act of Con¬ 
gress, approved the 14th of July, 1832, to alter and amend the several 
acts imposing duties on imports, and the acts, which it alters and 
amends,—to be unconstitutional, and therefore null and void; and have 
invested the Legislature of the State with power to adopt such meas¬ 
ures, not repugnant to the Constitution of the United States, nor of this 
State, as it may deem proper, to carry the same into effect. In taking 
this step, we feel it to be due to the intimate political relations existing 
between the States of the Union, to make known to them, distinctly, 
the principles on which we have acted, with the cause and motive by 
which we have been influenced;—to fulfill which is the object of the 
present communication. 6 Calhoun's Works, pp. 193-4. 

History of Nullification 

The history, error and evils of nullification, are set forth by 
Mr. Madison, Vol. 4, p. 395, of his works. He proves indisput- 


History of Nullification 


363 


ably, that a single state has no constitutional right or power 
to annul or suspend the operation of a law of the United States. 
This doctrine was attempted to be saddled on Mr. Jefferson, 
and Madison defends him against the doctrine. He says among 
other things: 

And this newfangled theory is attempted to be fathered on Mr. 
Jefferson, the apostle of republicanism, and whose own words declare 
that “acquiescence in the decision of the majority is the vital principle 
of it.” (See his Inaugural Address.) 

Well might Virginia declare, as her Legislature did by a resolution 
of 1833, that the resolutions of 1789-99 gave no support to the nullify¬ 
ing doctrine of South Carolina. And well may the friends of Mr. Jeffer¬ 
son disclaim any sanction to it or to any constitutional right of nullifi¬ 
cation from his opinion. His meaning is fortunately rescued from such 
imputations by the very document procured from his files and so 
triumphantly appealed to by the nullifying partisans of every descrip¬ 
tion. In this document the remedial right of nullification is expressly 
called a natural right, and, consequently, not a right derived from the 
Constitution, but from abuses or usurpations, releasing the parties to it 
from their obligation. 4 Writings of Madison, p. 410. 

He also adds: 

The main pillar of nullification is the assumption that sovereignty 
is a unit at once indivisible and unalienable; that the States, therefore, 
individually retain it entire as they originally held it; and, conse- 
* quently, that no portion of it can belong to the United States. 

But is not the Constitution itself necessarily the offspring of a 
sovereign authority? What but the highest political authority, a 
sovereign authority, could make such a Constitution, a Constitution 
which makes a Government; a Government which makes laws; laws 
which operate like the laws of all other Governments, by a penal and 
physical force, on the individuals subject to the laws; and, finally, laws 
declared to be the supreme law of the land, anything in the Constitu¬ 
tion or laws of the individual States notwithstanding. 

And where does the sovereignty which makes such a Constitution 
reside? It resides, not in a single State, but in the people of each or 
the several States, uniting with those of the others in the express and 
solemn compact which forms the Constitution. To the extent of that 
compact or Constitution, therefore, the people of the several States 
must be a sovereign as they are a united people. 

In like manner the constitutions of the States, made by the people 
as separated into States, were made by a sovereign authority, by a 
sovereign residing in each of the States, to the extent of the objects 
embraced by their respective constitutions. And if the States be thus 
sovereign, though shorn of so many of the essential attributes of 
sovereignty, the United States, by virtue of the sovereign attributes 
with which they are endowed, may to that extent be sovereign, though 
destitute of the attributes of which the States are not shorn. 

Such is the political system of the United States, de jure and de 
facto; and however it may be obscured by the ingenuity and technicali- 


364 


Nullification and Secession Distinguished 


ties of controversional commentators, its true character will be sus¬ 
tained by an appeal to the law and the testimony of the fundamental 
charter. 4 Writings of Madison, pp. ^19-^20. 

Nullification and Secession Distinguished 

Mr. Webster thus describes their differences: 

Nullification, Sir, is as distinctly revolutionary as secession; but I 
can not say that the revolution which it seeks is one of so respectable 
a character. Secession would, it is true, abandon the Constitution alto¬ 
gether; but then it would profess to abandon it. Whatever other in¬ 
consistencies it might run into, one, at least, it would avoid. It would 
not belong to a government, while it rejected its authority. It would 
not repel the burden, and continue to enjoy the benefits. It would not 
aid in passing laws which others are to obey, and yet reject their au¬ 
thority as to itself. It would not undertake to reconcile obedience to 
public authority with an asserted right of command over that same 
authority. It would not be in the government, and above the govern¬ 
ment, at the same time. But though secession may be a more re¬ 
spectable mode of attaining the object than nullification, it is not more 
truly revolutionary. Each, and both, resist the constitutional authori¬ 
ties; each, and both, would sever the Union and subvert the govern¬ 
ment. 3 Webster's Works, (7th. ed.), pp. J t 90-Jt91. 

Note —The South did not “abandon” the Constitution when it 
seceded. It re-declared its faith therein. It was the North that aban¬ 
doned or discarded parts of the Constitution. The North fought to 
preserve the Union; but to destroy parts of the Constitution. 

Mr. Davis, the President of the Confederacy, thus distin- • 
guishes them: 

Nullification and secession are often erroneously treated as if they 
were one and the same thing. It is true that both ideas spring from 
the sovereign right of a State to interpose for the protection of its 
own people, but they are altogether unlike as to both their extent and 
the character of the means to be employed. The first was a temporary 
expedient, intended to restrain action until the question at issue could 
be submitted to a convention of the States. It was a remedy which its 
supporters sought to apply within the Union; a means to avoid the 
last resort—separation. If the application for a convention should fail, 
or if the State making it should suffer an adverse decision, the advo¬ 
cates of that remedy have not revealed what they proposed as the next 
step—supposing the infraction of the compact to have been of that char¬ 
acter which, according to Mr. Webster, dissolved it. 

Secession, on the other hand, was the assertion of the inalienable 
right of a people to change their government, whenever it ceased to 
fulfill the purposes for which it was ordained and established. Under 
our form of government, and the cardinal principles upon which it was 
founded, it should have been a peaceful remedy. The withdrawal of a 
State from a league has no revolutionary or insurrectionary characteris¬ 
tic. The government of the State remains unchanged as to all internal 
affairs. It is only its external or confederate relations that are altered. 
To term this action of a sovereign a “rebellion,” is a gross abuse of 


Nullification and Secession Distinguished 365 

language. So is the flippant phrase which speaks of it as an appeal 
to the “arbitrament of the sword.” In the late contest, in particular, 
there was no appeal by the seceding States to the arbitrament of arms. 
There was on their part no invitation nor provocation to war. They 
stood in an attitude of self-defense, and were attacked for merely exer¬ 
cising a right guaranteed by the original terms of the compact. Davis 
on the Rise and Fall of the Confederate Government, Vol. I, 181f. 

At an early period in the history of the Federal Government, the 
States of Kentucky and Virginia found reason to reassert this right of 
State interposition. In the first of the famous resolutions drawn by 
Mr. Jefferson in 1789, and with some modification adopted by the Legis¬ 
lature of Kentucky in November of that year, it is declared that, “when¬ 
soever the General Government assumes undelegated powers, its acts 
are unauthoritative, void, and of no force; that to this compact each 
State acceded as a State, and is an internal party; that this Govern¬ 
ment, created by this compact, was not made the exclusive or final judge 
of the extent of the powers delegated to itself; since that would have 
made its discretion, and not the Constitution, the measure of its pow¬ 
ers; but that, as in all other cases of compact among parties having no 
common judge, each party has an equal right to judge for itself, as well 
of infractions as of the mode and measures of redress .” 

In the Virginia resolutions, drawn by Mr. Madison, adopted on the 
24th of December, 1798, and reaffirmed in 1799, the General Assembly 
of that State declares that “it views the powers of the Federal Govern¬ 
ment as resulting from the compact, to which the States are parties, 
as limited by the plain sense and intention of the instrument constitut¬ 
ing that compact, as no further valid than they are authorized by the 
grants enumerated in that compact; and that, in case of a deliberate, 
palpable, and dangerous exercise of other powers, not granted by the 
said compact, the States, who are parties thereto, have the right, and 
are in duty bound, to interpose, for arresting the progress of the evil, 
and for maintaining within their respective limits the authorities, 
rights, and liberties, appertaining to them.” Another of the same 
series of resolutions denounces the indications of a design “to consoli¬ 
date the States by degrees into one sovereignty.” Davis on the Rise 
and Fall of the Confederate Government, Vol. I, 188-9. 

These famous resolutions became the platform and the creed 
of the Democratic party, then called the Republican, as distin¬ 
guished from the Federalist: 

They were the basis of the contest for the Presidency in 1800, which 
resulted in their approval by the people in the triumphant election of 
Mr. Jefferson. They became part of the accepted creed of the Republi¬ 
can, Democratic, State-Rights, or Conservative party, as it has been 
variously termed at different periods, and as such they were ratified, 
by the people in every Presidential election that took place for sixty 
years, with two exceptions. The last victory obtained under them, and 
when they were emphasized by adding the construction of them con¬ 
tained in the report of Mr. Madison to the Virginia Legislature in 1799, 
was at the election of Mr. Buchanan—the last President chosen by 


366 Nullification and Secession Distinguished 

vote of a party that could with any propriety be styled “national,” in 
contradistinction to sectional. Davis on the Rise and Fall of the Con¬ 
federate Government, Vol. I, 189. 

Nullification is often confused with secession; they are, how¬ 
ever, very different. Mr. Calhoun was the great advocate of 
nullification, and claimed Jefferson and Madison as his author¬ 
ity therefor, and the reading of the Kentucky and Virginia 
Resolutions which were drafted by them, seem to give color to 
the claim; but Mr. Madison, during the life and time of Cal¬ 
houn, disclaimed that he or Jefferson, ever believed in or advo¬ 
cated nullification. Even Mr. Davis never believed in nullifi¬ 
cation, though he did in secession. 

The doctrine is expressly repudiated by B. J. Sage in The 
Republic of Republics, 4th ed., p. 260: “But a State or its 
convention has no right to withdraw some, and leave the rest 
of the powers; or obstruct the execution of a part; or annul a 
law, which adhering to the Union; for the Constitution, being a 
compact, is not to be partly suspended and partly executed, by 
one of the parties/’ Jefferson Davis also said, in his farewell 
speech in the Senate (The Rise and Fall of the Confederate 
Government, vol. i, pp. 221, 222) : “I hope none who hear me 
will confound this expression of mine with the advocacy of the 
right of a State to remain in the Union, and to disregard its 
constitutional obligations by the nullification of the law. Such 
is not my theory. Nullification and secession, so often con¬ 
founded, are indeed antagonistic principles.” And again, 
speaking of Judge Sharkey: “He had been an advocate of 
nullification—a doctrine to which I had never assented, and 
which had been at one time the main issue in Mississippi poli¬ 
tics.” (Ibid., vol. i, p. 231.) 

The arguments against the constitutionality of nullification may be 
found in Webster’s Reply to Hayne, Jackson’s Proclamation, and Dane’s 
Abridgement, vol. ix, Appendix. Foster on the Constitution, Vol. 1 , 
(note) p. 142. 

Mr. Foster records the following incidents: 

On April 13th, 1830, Jefferson’s birthday was celebrated by a sub¬ 
scription dinner at Washington, with the President, Vice-President and 
Cabinet among the guests. The twenty-four regular toasts savored of 
the new doctrine of nullification. At their conclusion, Jackson was 
called upon for a volunteer, and gave utterance to his famous senti¬ 
ment: “Our Federal Union; it must be preserved.” The Vice-Presi¬ 
dent, Calhoun, followed with another: 

“The Union: next to our Liberty the most dear; may we all remem¬ 
ber that it can only be preserved by respecting the rights of the States, 
and distributing equally the benefit and burthen of the Union.” 


Nullification and Secession Distinguished 367 

The Secretary of State, Van Buren, then gave: 

“Mutual forbearance and reciprocal concession: through their ten¬ 
dency the Union was established. The patriotic spirit from which they 
emanated will forever sustain it.” Foster on the Constitution , VoZ. 1, 
pp. U7-8. ' 

Hayne resigned his seat in the Senate, where, in the opinion of his 
constituents, he had been the victor in his conflict with Webster, and 
sacrificed a brilliant political future, in order to lead as governor the 
proceedings for nullification. Calhoun resigned the Vice-Presidency, 
and was chosen Senator in the place of Hayne. October 28th, an act 
was passed calling a convention of the people of the State. Foster on 
the Constitution, Vol. 1, p. 148. 

It was further ordained that: 

It shall not be lawful for any of the constituted authorities, whether 
of this State or of the United States, to enforce the payment of duties 
imposed by the said acts within the limits of this State. 

That it was the duty of the legislature “to adopt such measures and 
pass such acts as may be necessary to give full effect to this ordinance, 
and to prevent the enforcement and arrest the operation of the said 
acts and parts of acts of the Congress of the United States within the 
limits of this State, from and after the first day of February next.” 
Foster on the Constitution, Vol. 1, p. 149. 

Some curiosity was expressed upon Calhoun’s return to the Senate 
as to whether he would take the oath to support the Constitution of the 
United States. He did this with perfect calmness and with entire con¬ 
sistency. For according to his theory of the Constitution, the proceed¬ 
ings in South Carolina were perfectly lawful. Jackson sent in a mes¬ 
sage reciting the proceedings, stating the sufficiency of the present 
statutes to deal with the subject, and asking for further powers. He 
also privately sent word to Calhoun that he would hang him higher 
than Haman if nullification were not abandoned. Calhoun’s enemies 
said that he was cowed and driven to abandon his position. In truth, 
however, he continued his action with perfect coolness and came out 
the victor. Threats by words and action of a precipitation of an armed 
conflict between the State and the United States continued in South 
Carolina under the direction of Hayne during January, 1832. A re¬ 
duction of the tariff as a compromise was adjusted after a conference 
between Calhoun and Clay. Foster on the Constitution, Vol. 1, p. 154. 

On March 2d, 1833, the President signed the bill for the com¬ 
promise tariff, and the enforcement bill. 

March 11th, the Convention reassembled in South Carolina; 
repealed the Ordinance of Nullification on account of the 
passage of the new tariff; and on the 18th, went through the 
form of nullifying the enforcement act,—a perfectly safe pro¬ 
ceeding, since obedience to the tariff prevented any test of its 
validity. A year later, the Supreme Court of South Carolina, 


368 Nullification and Secession Distinguished 

by a vote of two to one, held that the requirement of an oath 
of allegiance to the State ignoring the Constitution of the 
United States was a violation of the State Constitution, which 
forbade new qualifications for office. One of the judges held 
that it was also a violation of the Constitution of the United 
States. 

Mr. Calhoun thus differentiates: 

First, they are wholly dissimilar in their nature. One has reference 
to the parties themselves, and the other to iheir agents. Secession is a 
withdrawal from the Union; a separation from partners, and, as far as 
depends on the member withdrawing, a dissolution of the partnership. 
It presupposes an association; a union of several States or individuals 
for a common object. Wherever these exist, secession may; and where 
they do not, it can not. Nullification, on the contrary, presupposes the 
relation of principal and agent: the one granting a power to be executed, 
—the other, appointed by him with authority to execute it; and is 
simply a declaration on the part of the principal, made in due form s 
that an act of the agent transcending his power is null and void. It is 
a right belonging exclusively to the relation between principal and 
agent, to be found wherever it exists, and in all its forms, between 
several, or an association of principals, and their joint agents, as well 
as between a single principal and his agent. 6 Calhoun's Works, p. 168. 

Mr. Webster thus describes the evils of nullification: 

Nullification, if successful, arrests the power of the law, absolves 
citizens from their duty, subverts the foundation both of protection 
and obedience, dispenses with oaths and obligations of allegiance, and 
elevates another authority to supreme command. Is not this revolu¬ 
tion? And it raises to supreme command four-and-twenty distinct 
powers, each professing to be under a general government, and yet 
each setting its laws at defiance at pleasure. Is not this anarchy, as 
well as revolution? Sir, the Constitution of the United States was 
received as a whole, and for the whole country. If it can not stand 
altogether, it can not stand in parts; and if the laws can not be 
executed everywhere, they can not long be executed anywhere. 3 Web¬ 
ster's Works, (7th. ed.) p. 1/61. 

Mr. President, the alleged right of a State to decide constitutional 
questions for herself necessarily leads to force, because other States 
must have the same right, and because different States will decide dif¬ 
ferently; and when these questions arise between States, if there be no 
superior power, they can be decided only by the law of force. On 
entering into the Union, the people of each State gave up a part of their 
own power to make laws for themselves, in consideration that, as to 
common objects, they should have a part in making laws for other 
States. In other words, the people of all the States agreed to create a 
common government, to be conducted by common counsels. 3 Webster's 
Works, (7th. ed.), p. 462. 


Nullification, Calhoun’s, Clay’s and Webster’s Yiew of 369 

Mr. Webster in reply to Mr. Calhoun’s speech on the resolu¬ 
tion declaring that the constitution was a mere compact, thus 
states his views as to its character and nature: 

And now, Sir, against all these theories and opinions, I maintain,— 

1. That the Constitution of the United States is not a league-con¬ 
federacy, or compact between the people of the several States in their 
sovereign capacities; but a government proper founded on the adoption 
of the people, and creating direct relations between itself and in¬ 
dividuals. 

2. That no State authority has power to dissolve these relations; 
that nothing can dissolve them but revolution; and that, consequently, 
there can be no such thing as secession without revolution. 

3. That there is a supreme law, consisting of the Constitution of the 
United States, and acts of Congress passed in pursuance of it, and 
treaties; and that, in cases not capable of assuming the character of a 
suit in law or equity, Congress must judge of, and finally interpret, this 
supreme law so often as it has occasion to pass acts of legislation; and 
in cases capable of assuming, and actually assuming, the character of a 
suit, the Supreme Court of the United States is the final interpreter. 

4. That an attempt by a State to abrogate, annul, or nullify an act 
of Congress, or to' arrest its operation within her limits, on the ground 
that, in her opinion, such law is unconstitutional, is a direct usurpa¬ 
tion on the just powers of the general government, and on the equal 
rights of other States; a plain violation of the Constitution, and a pro¬ 
ceeding essentially revolutionary in its character and tendency. 3 
Webster's Works, (7th. ed.J, pp. 464, 465. 

The Constitution, Sir, is not a contract, but the result of a contract; 
meaning by contract no more than assent. Founded on consent, it is a 
government proper. Adopted by the agreement of the people of the 
United States, when adopted, it has become a Constitution. The people 
have agreed to make a Constitution; but when made, that Constitution 
becomes what its name imports. It is no longer a mere agreement. 
Our laws, Sir, have their foundation in the agreement or consent of the 
two houses of Congress. We say, habitually, that one house proposes a 
bill, and the other agrees to it; but the result of this agreement is not 
a compact, but a law. The law, the statute, is not the agreement, but 
something created by the agreement; and something which, when 
created, has a new character, and acts by its own authority. So the 
Constitution of the United States, founded in or on the consent of the 
people, may be said to rest on compact or consent; but it is not itself 
the compact, but its result. When the people agree to erect a govern¬ 
ment, and actually erect it, the thing is done, and the agreement is at 
an end. The compact is executed, and the end designed by it attained. 
Henceforth, the fruit of the agreement exists, but the agreement itself 
is merged in its own accomplishment; since there can be no longer a 
subsisting agreement or compact to form a constitution or government, 
after that constitution or government has been actually formed and 
established. 3 Webster's Works, (7th. ed.), p. 468. 

The following were Mr. Clay’s views of these questions: 

With respect to this Union, Mr. President, the truth can not be too 
generally proclaimed, nor too strongly inculcated, that it is necessary 


370 Nullification, Calhoun's, Clay's and Webster's View of 


to the whole and to all the parts —necessary to those parts, indeed, in 
different degrees, but vitally necessary to each —and that threats to 
disturb or dissolve it, coming from any of the parts, would be quite as 
indiscreet and improper as would be threats from the residue to exclude 
those parts from the pale of its benefits. The great principle, which 
lies at the foundation of all free governments, is, that the majority must 
govern—from which there is, or can be, no appeal but to the sword. 
That majority ought to govern wisely, equitably, moderately, and con¬ 
stitutionally, but govern it must, subject only to that terrible appeal, 
if ever one of several states, being a minority, can, by menacing a dis¬ 
solution of the Union, succeed in forcing an abandonment of great 
measures, deemed essential to the interests and prosperity of the whole, 
the Union, from that moment, is practically gone. It may linger on, in 
form and name, but its vital spirit has fled forever! Entertaining 
these deliberate opinions, I would entreat the patriotic people of South 
Carolina—the land of Marion, Sumter, and Pickens—of Rutledge, 
Laurens, the Pinckneys and Lowndes—of living and present names, 
which I would mention if they were not living or present—to pause, 
solemenly pause! and contemplate the frightful precipice which lies 
directly before them! To retreat may be painful and mortifying to 
their gallantry and pride, but it is to retreat to the Union, to safety, and 
to those, brethren with whom, or with whose ancestors, they, or their 
ancestors, have won, on fields of glory, imperishable renown. To ad¬ 
vance, is to rush on certain and inevitable disgrace and destruction. 
2 Clay, pp. 215-216. 

Mr. Madison thus wrote a friend : 

I know not whence the idea could proceed that I concurred in the 
doctrine, that although a State could not nullify a law of the Union, it 
had. a right to secede from the Union. Both spring from the same 
poisonous root, unless the right to secede be limited to cases of intoler¬ 
able oppression, absolving the party from its constitutional obligations. 

I hope that all who now see the absurdity of nullification, will see 
also the necessity of rejecting the claim to effect it through the State 
judiciaries, which can only be kept in their constitutional career by the 
control of the Federal jurisdiction. Take the linch-pins from a car¬ 
riage, and how soon would a wheel be off its axle; an emblem of the 
speedy fate of the Federal system, were the parties to it loosened from 
the authority which confines them to their spheres. ^ Writings of Mad¬ 
ison, p. 196. 

Mr. Madison thus spoke of nullification: 

I have made no secret of my surprise and sorrow at the proceedings 
in South Carolina, which are understood to assert a right to annul the 
acts of Congress within the State, and even to secede from the Union 
itself. But I am willing to enter the political field with the il telum 
im'belle ,, which alone I could wield. The task of combating such un¬ 
happy aberrations belongs to other hands. A man whose years have 
but reached the canonical three-score-and-ten (and mine are much be¬ 
yond the number) should distrust himself, whether distrusted by his 
friends or not, and should never forget that his arguments, whatever 
they may be, will be answered by allusions to the date of his birth. 
k Writings of Madison, pp. 65-6. 


Nullification, Calhoun's, Clay's and Webster's View of 371 

Mr. Webster, in his debate wth Mr. Hayne, thus states the 
reasons against the power of a State to nullify an act of Con¬ 
gress : 

If the Constitution be a compact between States, still that Constitu¬ 
tion, or that compact, has established a government, with certain pow¬ 
ers; and whether it be one of those powers, that it shall construe and 
interpret for itself the terms of the compact, in doubtful cases, is a 
question which can only be decided by looking to the compact, and 
inquiring what provisions it contains on this point. Without any in¬ 
consistency with natural reason, the government even thus created 
might be trusted with this power of construction. The extent of its 
powers, therefore, must still be sought for in the instrument itself. 
3 Webster's Works, nth. ed.), p. 3U. 

The Constitution declares, that the laws of Congress passed in pur¬ 
suance of the Constitution shall be the supreme law of the land. No 
construction is necessary here. It declares, also, with equal plainness 
and precision, that the judicial power of the United States shall extend 
to every case arising under the Jaws of Congress. This needs no con¬ 
struction. Here is a law, then, which is declared to be supreme; and 
here is a power established, which is to interpret that law. Now, Sir, 
how has the gentleman met this? Suppose the Constitution to be a 
compact, yet here are its terms; and how does the gentleman get rid 
of them? He can not argue the seal off the bond, nor the words out of 
the instrument. Here they are; what answer does he give to them? 
None in the world, Sir, except, that the effect of this would be to place 
the States in a condition of inferiority; and that it results from the 
very nature of things, there being no superior, that the parties must 
be their own judges! Thus closely and cogently does the honorable 
gentleman reason on the words of the Constitution. The gentleman 
says, if there be such a power of final decision in the general govern¬ 
ment, he asks for the grant of that power. Well, Sir, I show him the 
grant. I turn him to the very words. I show him that the laws of 
Congress are made supreme; and that the judicial power extends, by 
express words, to the interpretation of these laws. Instead of answer¬ 
ing this, he retreats into the general reflection, that it must result 
from the nature of things, that the States, being parties, must judge for 
themselves. 3 Webster's Works, (7th. ed.), p. 3Jj5. 

In 1833 Mr. Madison wrote Mr. Webster, thanking him for 
a copy of his speech in the debate with Mr. Hayne on the 
Foote Resolution. In part he said: 

I return my thanks for the copy of your late very powerful speech 
in the Senate of the United States. It crushes “nullification” and 
must hasten an abandonment of “secession.” But this dodges the 
blow, by confounding the claim to secede at will with the right of 
seceding from intolerable oppression. The former answers itself, be¬ 
ing a violation without cause of a faith solemnly pledged. The latter 
is another name only for revolution, about which there is no theoretic 
controversy. Webster's Works , (7th ed.), Vol. 1, evil. 


372 


Secession, Origin of Doctrine 


Impracticability of Secession 

The compiler of this book endorses the sentiment of Mr. 
Davis in the last sentence of his book, “The Rise and Fall of 
The Confederate Government,’’ where he says: 

In asserting the right of secession, it has not been my wish to 
incite to its exercise: I recognize the fact that the war showed it to 
be impracticable, but this did not prove it to be wrong; and, now 
that it may not be again attempted, and that the Union may promote 
the general welfare, it is needful that the truth, the whole truth, 
should be known, so that crimination and recrimination may forever 
cease, and then, on the basis of fraternity and faithful regard for 
the rights of the States, there may be written on the arch of the 
Union, Esto perpetua. Davis on The Rise and Fall of The Confederate 
Government, Vol. II, 7 64 . 

Origin of the Doctrine of Secession 

Mr. Davis thus gives the history of the doctrine: 

Colonel Timothy Pickering, who had been an officer of the war of 
the Revolution, afterward successively Postmaster-General, Secretary 
of War, and Secretary of State, in the Cabinet of General Washing¬ 
ton, and, still later, long a representative of the State of Massachu¬ 
setts in the Senate of the United States, was one of the leading seces¬ 
sionists of his day. Writing from Washington to a friend, on the 
24th of December, 1803, he says: 

“I will not yet despair. I will rather anticipate a new confederacy , 
exempt from the corrupt and corrupting influence and oppression of 
the aristocratic democrats of the South. There will be (and our 
children, at farthest, will see it) a separation. The white and black 
population will mark the boundary.” 

In another letter, written a few weeks afterward (January 29, 
1804), speaking of what he regarded as wrongs and abuses perpetrated 
by the existing Administration, he thus expresses his views of the 
remedy to be applied: 

“The principles of our Revolution point to the remedy— a separa¬ 
tion. That this can be accomplished, and without spilling one drop 
of blood, I have little doubt. . . . 

“I do not believe in the practicability of a long-continued Union. 
A Northern Confederacy would unite congenial characters and present 
a fairer prospect of public happiness; while the Southern States, hav¬ 
ing a similarity of habits, might be left to ‘manage their own affairs 
in their own way.’ If a separation were to take place, our mutual 
wants would render a friendly and commercial intercourse inevita¬ 
ble. The Southern States would require the naval protection of the 
Northern Union, and the products of the former would be important 
to the navigation and commerce of the latter. . . . 

“It (the separation) must begin in Massachusetts. The proposition 
would be welcomed in Connecticut; and could we doubt of New 
Hampshire? But New York must be associated; and how is her con¬ 
currence to be obtained? She must be made the center of the Con- 


Secession, Origin of Doctrine 


373 


federacy. Vermont and New Jersey would follow of course, and Rhode 
Island of necessity.” Davis on The Rise and Fall of The Confederate 
Government, Vol. I, 72. 

In 1811, on the bill for the admission of Louisiana as a State of 
the Union, the Hon. Josiah Quincy, a member of Congress from Mas¬ 
sachusetts, said: 

“If this bill passes, it is my deliberate opinion that it is virtually 
a dissolution of this Union; that it will free the States from their 
moral obligation; and as it will be the right of all, so it will be the 
duty of some, definitely to prepare for a separation—amicably if they 
can, violently if they must.” 

Mr. Poindexter, delegate from what was then the Mississippi Ter¬ 
ritory, took exception to these expressions of Mr. Quincy, and called 
him to order. The Speaker (Mr. Varnum, of Massachusetts) sus¬ 
tained Mr. Poindexter, and decided that the suggestion of a dissolu¬ 
tion of the Union was out of order. An appeal was taken from this 
decision, and it was reversed. Mr. Quincy proceeded to vindicate the 
propriety of his position in a speech of some length, in the course of 
which he said: 

“Is there a principle of public law better settled or more con¬ 
formable to the plainest suggestions of reason than that the viola¬ 
tion of a contract by one of the parties may be considered as exempt¬ 
ing the other from its obligations? Suppose, in private life, thirteen 
form a partnership, and ten of them undertake to admit a new part¬ 
ner without the concurrence of the other three; would it not be at 
their option to abandon the partnership after so palpable an in¬ 
fringement of their rights? How much more in the political partner¬ 
ship, where the admission of new associates, without previous au¬ 
thority, is so pregnant with obvious dangers and evils!” Davis on 
The Rise and Fall of The Confederate Government, Vol. I, 73, 7Jf. 

The celebrated Hartford Convention assembled in December, 1814. 
It consisted of delegates chosen by the Legislatures of Massachusetts, 
Rhode Island, and Connecticut, with an irregular or imperfect repre¬ 
sentation from the other two New England States, New Hampshire 
and Vermont, convened for the purpose of considering the grievances 
complained of by those States in connection with the war with Great 
Britain. They sat with closed doors, and the character of their de¬ 
liberations and discussions has not been authentically disclosed. It 
was generally understood, however, that the chief subject of their 
consideration was the question of the withdrawal of the States they 
represented from the Union. Davis on The Rise and Fall of The 
Confederate Government, Vol. 1, 74. 

Again, in 1844-’45, the measures taken for the annexation of Texas 
evoked remonstrances, accompanied by threats of a dissolution of the 
Union from the Northeastern States. The Legislature of Massa¬ 
chusetts, in 1844, adopted a resolution, declaring, in behalf of that 
State, that “the Commonwealth of Massachusetts, faithful to the 
compact between the people of the United States, according to the 
plain meaning and intent in which it was understood by them, is 
but that it is determined, as it doubts not the other States are, sin¬ 
cerely anxious for its preservation; to submit to undelegated powers 


574 


Secession, Origin of Doctrine 


in no body of men on earth;" and that “the project of the annexation 
of Texas, unless arrested on the threshold, may tend to drive these 
States into a dissolution of the Union" 

Early in the next year (February 11, 1845), the same Legislature 
adopted and communicated to Congress a series of resolutions on the 
same subject, in one of which it was declared that, “as the powers 
of legislation granted in the Constitution of the United States to 
Congress do not embrace a case of the admission of a foreign state 
or foreign territory, by legislation, into the Union, such an act of 
admission would have no binding force whatever on the people of 
Massachusetts" —language which must have meant that the admission 
of Texas would be a justifiable ground for secession, unless it was 
intended to announce the purpose of nullification. Davis on the Rise 
and Fall of the Confederate Government, Vol. I, 76. 

The right of a State to secede from the Union was not as is 
by some supposed and charged, a new doctrine, first an¬ 
nounced by the South and her statesmen, as a means of per¬ 
petuating slavery. This right was claimed by many states¬ 
men, East, North and South, long before the differences be¬ 
tween advocates as to the question of slavery in the 50s and 
60s. It was taught by eminent publicists and text writers on 
the Constitution. See Tucker’s Blackstone, Vol. II, appendix, 
pp. 170, 171, 175, 187. Rawles on Constitution, pp. 288, 290. 
Even Henry Cabot Lodge, in his life of Webster, states that 
in the early history of the Constitution, both Federalists and 
Republicans, from Washington and Hamilton on the one side 
to Clinton and Jefferson on the other, conceded that any 
State had a right to peaceably withdraw from the Union. See 
his Work, pp. 176, 177. The State of Massachusetts, and her 
statesmen, as well as Southern States, and theirs, when Con¬ 
gress refused to make appropriations to carry the Jay Treaty 
into effect; when Louisiana was acquired; again when the 
United States invaded Canada, and when Texas was acquired, 
some of the Northern and Eastern States threatened and as¬ 
serted the rights of the States to secede. If the Southern 
States had not divided among themselves, as to Candidates 
in 1860, and had succeeded in electing a President, and a ma¬ 
jority of Congress, it very probably would have resulted that 
some of the Northern States would have seceded. It was per¬ 
fectly evident, that secession would follow this election. 

Mr. Foster thus speaks of the subject and conditions: 

The election by the Northern States, for President, of a Northern 
man who had said that the Union could not “endure permanently 
half slave, half free,” and had publicly declared his refusal to ac- 


Recession, Origin of Doctrine 


375 


quiesce in the opinion in the Dred Scott Case, that slavery could not 
be constitutionally excluded from the Territories, convinced the South 
that new safeguards were necessary for the preservation of their 
peculiar institution. Renewed threats of a dissolution of the Union 
were received in such a manner by the North as to make it clear 
that a majority of the people were resolved to submit to no further 
aggressions by the slave power. Foster on the Constitution, Vol. I, 
p. 163. 

Alexander H. Stephens, the Vice-President of the Confed¬ 
eracy, says, in his Constitutional View of the War Between 
the States, Vol. 11, p. 321: 

The truth is, in my judgment, the wavering scale in Georgia was 
turned by a sentiment, the key-note to which was given in the words, 
“We can make better terms out of the Union than in it.” It was Mr. 
Thomas R. R. Cobb who gave utterance to this key-note, in his speech 
before the Legislature two days before my address before the same 
body. This one idea did more, in my opinion, in carrying the State 
out, than all the arguments and eloquence of all the others combined. 
Two-thirds, at least, of those who voted for the Ordinance of Seces¬ 
sion, did so, I have but little doubt, with a view to a more certain 
Re-formation of the Union. 

And again speaking of Lincoln’s proclamation, calling for 
troops Mr. Poster further said : 

“The effect of this upon the public mind of the Southern States 
cannot be described or even estimated. The shock was not unlike 
that produced by great convulsions of nature . . . the upheavings 

and rockings of the earth itself! It was not that of fright. Far from 
it! But a profound feeling of wonder and astonishment! Up to this 
time, a majority, I think,, of even those who had favored the policy 
of secession, had done so under the belief and conviction that it was 
the surest way of securing a redress of grievances, and of bringing 
the Federal Government back to constitutional principles. Many of 
them indulged hopes that a Re-formation, or a Re-construction of the 
Union would soon take place on the basis of the new Montgomery 
Constitution* and that the Union, under this, would be continued and 
strengthened, or made more perfect, as it had been in 1789, after the 
withdrawal of nine States from the first Union, and the adoption of 
the Constitution of 1787. This proclamation dispelled all such hopes.” 
He says again that when South Carolina attacked Fort Sumter, Lin¬ 
coln should have called a Congress of the States which had not se¬ 
ceded, to consult them upon his action in the matter. Foster on the 
Constitution, Vol. I, (note) p. 170. 

Stephens gives the following testimony concerning the atti¬ 
tude of Jefferson Davis: “I never saw a word from him re¬ 
commending secession as the proper remedy against threat¬ 
ened dangers until he joined in the general letter of the South¬ 
ern Senators and Representatives in Congress to their States 


376 


Secession, Honest Belief in 


advising them to take that course. This was in December, 
1860, and not until after it was ascertained in the Committee 
of the Senate, on Mr. Crittenden’s proposition for quieting the 
apprehensions and alarm of the Southern States, from the 
accession of Mr. Lincoln to power, that the Republicans, his 
supporters, would not agree to that measure. It is well known 
that both he and Mr. Toombs declared their willingness to 
accept the adoption of Mr. Crittenden’s measure as a final 
settlement of the controversy between the States and sections, 
if the party coming into power would agree to it in the same 
spirit and with the same assurance.” (Ibid., vol. i, pp. 416, 
417.) See also Douglas’ speech in the Senate, Jan. 3d, 1861, 
stating the position of Toombs and Davis at that time. (Cong. 
Globe, 2d Sess., 36th Congress, appendix, p. 441) ; Report by 
H. P. Bell, commissioner of Georgia to Tennessee (Journal of 
Georgia’s Convention, p. 368) : article by J. D.- Cox in At¬ 
lantic Monthly for 1892, p. 390; infra, note 56. 

Poster refers to the following authorities on the subject: 

The evidence collected by Rhodes in his History of the United 
States, vol. iii, pp. 272-280, 381-385, 404-408 (see also Stephens, Con¬ 
stitutional View of the War between the States, vol. ii, p. 389), proves 
conclusively that after the movement was under way, the people of the 
South went faster than their leaders wished. Jefferson Davis urged 
them to go more slowly, and said in private conference and by letters 
and telegrams that he was “opposed to secession as long as the hope 
of a peaceful remedy remained.” (Letter of O. R. Singleton, quoted 
by Davis, Rise and Fall of the Confederate Government, vol. i, p. 58; 
see also ibid., pp. 201, 227; Life of Davis, by his wife, vol. i, p. 697). 
Even Toombs was accused by his constituents of brandishing a tin 
sword (see citations by Rhodes, ibid., vol. iii, p. 213). The evidence 
cited, as well as all the contemporary reports, prove that had the 
Crittenden compromise been adopted, secession would have been 
abandoned. Foster on the Constitution, Vol. I, (note) p. 177-8. 

Secession An Honest Belief 

A Northern man’s view of the subject: 

“There is no foundation for the approbrium heaped upon the Con¬ 
federates by the supporters of the Union during the Civil War and 
the subsequent period of Reconstruction. Nothing is more unjust 
than to charge with perjury men who, like Davis, Lee and Stephens, 
after having sworn to support the Constitution, some of them after 
opposition to secession, joined their fellow citizens in their own 
States in waging war upon the national government. They honestly 
believed that the Constitution justified such action. They were sup¬ 
ported by doctrines laid down by publicists as well as statesmen of 
authority in the North as well as the South. During the whole of the 
nineteenth century down to the surrender of Lee, the country was 


Secession, Honest Belief in 


377 


divided in opinion upon the subject. The Civil War, although held 
in law to be a rebellion, was treated by the Federal army, by the 
Federal courts, and by foreign nations as a fact in geographical war, 
giving to the combatants on both sides and the inhabitants of each 
section of the country the rights and liabilities of belligerents. Mem¬ 
bers of the Confederate army were not punished as rebels. None of 
them were tried for treason. A Northern jury refused to convict of 
piracy officers of Confederate privateers. No attempt was made to 
draw an indictment against the whole Southern people.” Foster on 
the Constitution, Vol. I, pp. 111-115. 

Mr. Foster thus concludes as to the result of secession: 

The South failed in an attempt to accomplish a revolution for the 
security of slavery. Their failure was followed by a successful revo¬ 
lution effected by the North, which destroyed the institution that had 
been the canker in the body politic, and so cemented the Union as to 
make it stronger and more beneficial than before. At the start of 
secession, the Southern statesmen announced that they would never 
return without a reconstruction of the Union. On their return, they 
found that a reconstruction had been brought to pass. And their 
children now admit that what they obtained was better than what 
they sought. Foster on the Constitution, V&l. I, p. 268. 

Mr. Webster, as Secretary of State, wrote his own people: 

We have recently been informed, gentlemen, of an open act of re¬ 
sistance to law, in the city of Boston; and if the accounts be correct 
of the circumstances of this occurrence, it is, strictly speaking, a 
case of treason. If men combine and confederate together, and by 
force of arms or force of numbers effectually resist the operation of 
an act of Congress, in its application to a particular individual, with 
the avowed purpose of making the same resistance to the same act 
in its application to all other individuals, this is levying war against 
the United States, and is nothing less than treason. Now, I under¬ 
stand that the persons concerned in this outrage in Boston avow 
openly their full purpose of preventing, by arms, or by the power of 
the multitude, the execution of process for the arrest of an alleged 
fugitive slave in any and all cases whatever, I am sure, gentlemen, 
that shame will burn the cheeks, and indignation fill the hearts of 
nineteen-twentieths of the people of Boston, at the avowal of principles 
and the commission of outrages so abominable. Depend upon it, that, 
if the people of that city had been informed of any such purpose or 
design as was carried into effect in the court-house in Boston, on 
Saturday last, they would have rushed to the spot, and crushed such 
a nefarious project into the dust. 1 6 Webster's Works, (7th ed.), p. 
589. 


J There were many acts in the North¬ 
ern and Eastern States similar to the 
ones denounced and condemned above 
by Mr. Webster. It was nothing less 
than nullification of the Federal Con¬ 
stitution and statutes as to fugitive 


slaves by mob law. Mr. Webster mis¬ 
judged the feelings and sentiments of 
the multitude in the Northern States. 
This mob was voicing the public sen¬ 
timent which ultimately controlled the 
Federal Constitution. 


378 


The Right of Secession, Authorities for 


The Right of Secession—Authorities For 

Mr. Bryce in his work on the American Constitution, after 
stating that the Constitution prior to the Thirteenth Amend¬ 
ment not only authorized but protected slavery, says on the 
subject: 

Stripped of legal technicalities, the dispute resolved itself into the 
problem often proposed but capable of no general solution: When is 
a majority entitled to use force for the sake of retaining a minority 
in the same political body with itself? To this question, when it 
appears in a concrete shape, as to the similar question, when an in¬ 
surrection is justifiable, an answer can seldom be given beforehand. 
The result decides. When treason prospers, none dare to call ^it 
treason. 

The Constitution, which had rendered many services to the Ameri¬ 
can people, did them inevitable dis-service when it fixed their minds 
on the legal aspects of the question. Law was meant to be the serv¬ 
ant of politics, and must not be suffered to become the master. 1 A 
case had arisen which its formulae were unfit to deal with, a case 
which had to be settled on large moral and historical grounds. It 
was not merely the superior physical force of the North that pre¬ 
vailed; it was the moral forces which rule the world, forces which 
had long worked against slavery, and were ordained to save North 
America from the curse of hostile nations established side by side. 
Bryce's American Commonwealth, Vol. I, JflO. 

In the uncertainty as to where legal right resided, it would have 
been prudent to consider where physical force resided. The South 
however thought herself able to resist any physical force which the 
rest of the nation might bring against her. Thus encouraged, she 
took her stand on the doctrine of States Rights; and then followed a 
pouring out of blood and treasure such as was never spent on de¬ 
termining a law before, not even when Edward III and successors 
waged war for a hundred years to establish the claim of females 
to inherit the crown of France. 

What then, do the rights of a S'tate now include? Every power 
or right of a Government except: 

The right of secession (not abrogated in terms, but admitted since 
the war to be no longer claimable. It is expressly negatived in the 
recent Constitutions of several Southern States.) 

Powers which the Constitution withholds from the State (including 
that of intercourse with foreign governments.) 

Powers which the Constitution expressly confers on the Federal 
Government. 

As respects some powers of the last class, however, the States may 


1 Here Mr. Bryce spoke a great truth 
when he said that law is the servant 
of politics, and not its master. Pol¬ 
itics in the Northern States had de¬ 
cided not to observe this provision of 
the Constitution as to slavery. The 
officers of the government did profess 
to defend and did not intend to vio¬ 


late the Constitution because they 
had to take an oath to support it, 
this provision as well as others. But, 
as Mr. Madison said, public opinion is 
the only real sovereign in a free gov¬ 
ernment, and as Mr. Bryce says : Pol¬ 
itics is the master, and law the serv¬ 
ant. 


Secession, Historical Facts to Support Right 


379 


act concurrently with, or in default or action by, the Federal Govern¬ 
ment. It is only from contravention of its action that they must ab¬ 
stain. Bryce's American Commonwealth, Yol. I, 411 . 

Mr. Davis thus collects historical facts as to the right of 
secession: 

The evidence of Hamilton and Madison—two of the most eminent 
of the authors of the Constitution, and the two preeminent contem¬ 
porary expounders of its meaning—is the most valuable that could 
be offered for its interpretation. That of all the other statesmen of 
the period only tends to confirm the same conclusions. The illus¬ 
trious WASHINGTON, who presided over the Philadelphia Conven¬ 
tion, in his correspondence, repeatedly refers to the proposed Union 
as a “Confederacy” of States, or a “Confederated Government,” and 
to the several States as “acceding,” or signifying their consent or 
“accession” to it, in ratifying the Constitution. He refers to the 
Constitution itself as “a compact or treaty,” and classifies it among 
compacts or treaties between “men, bodies of men, or countries.” 
Writing to Count Rochambeau, on January 8, 1788, he says that the 
proposed Constitution “is to be submitted to conventions chosen by 
the people of the several States, and by them approved or rejected” 
—showing what he understood by “the people of the United States,” 
who were to ordain and establish it. These same people—that is, 
“the people of the several States”—he says, in a letter to Lafayette, 
April 28, 1788, “retain everything they do not, by express terms, give 
up.” In a letter written to Benjamin Lincoln, October 26, 1788, he re¬ 
fers to the expectation that North Carolina will accede to the Union, 
and adds, “Whoever shall be found to enjoy the confidence of the 
States so far as to be elected Vice-President,” etc.,—showing that in 
the “Confederate Government,” as he termed it, the States were still 
to act independently, even in the election of officers of the General 
Government. He wrote to General Knox, June 17, 1788, “I can not 
but hope that the States which may be disposed to make a secession 
will think often and seriously on the consequences.” June 28, 1788, he 
wrote to General Pinckney that New Hampshire “had acceded to the 
new Confederacy,” and, in reference to North Carolina, “I should 
be astonished if that State should withdraw from the Union.” Davis 
on The Rise and Fall of The Confederate Government, Yol. I, 165. 

John Marshall, afterward the most distinguished Chief Justice of 
the United States—who has certainly never been regarded as holding 
high views of State rights—in the Virginia Convention of 1788, is 
reported to have said: 

“The State governments did not derive their powers from the 
general Government; but each government derived its powers from 
the people, and each was to get according to the powers given it. 
Would any gentleman deny this? . . . Could any man say that 

this power was not retained by the States, as they had not given it 
away? For (says he) does not a power remain till it is given away? 
The State Legislatures had power to command and govern their militia 
before, and have it still, undeniably, unless there be something in 
this Constitution that takes it away. . . 


380 


Secession, Historical Facts to Support Eight 


He concluded by observing that the power of governing the militia 
was not vested in the States by implication, because, being possessed 
of it antecedently to the adoption of the Government, and not being 
divested of it by any grant or restriction in the Constitution, they 
must necessarily be as fully possessed of it as ever they had been, 
and it could not be said that the States derived any powers from 
that system, but retained them, though not acknowledged in any 
part of it. Davis on The Rise and Fall of The Confederate Govern¬ 
ment, Vol. I, 165. 

At an earlier period—but when he had already served for several 
years in Congress, and had attained the full maturity of his powers— 
Mr. Webster held the views which were presented in a memorial to 
Congress of citizens of Boston, December 15, 1819, relative to the ad¬ 
mission of Missouri, drawn up and signed by a committee of which 
he was chairman, and which also included among its members Mr. 
Josiah Quincy. He speaks of the States as enjoying “the exclusive 
possession of sovereignty” over their own territory, calls the United 
States “the American Confederacy,” and says, “The only 'parties to 
the Constitution, contemplated by it originally, were the thirteen con¬ 
federated States .” And again, “As between the original States, the 
representation rests on compact and plighted faith; and your memo¬ 
rialists have no wish that that compact should be disturbed or that 
plighted faith in the slightest degree violated.” Davis on The Rise 
and Fall of The Confederate Government, Vol. I, 166. 

Mr. Webster, in a speech in Virginia in 1851, said: 

“If the South were to violate any part of the Constitution inten¬ 
tionally and systematically, and persist in so doing year after year, 
and no remedy could be had, would the North be any longer bound 
by the rest of it? And if the North were, deliberately, habitually, and 
of fixed purpose, to disregard one part of it, would the South be bound 
any longer to observe its other obligations? . . . 

“How absurd it is to suppose that, when different parties enter 
into a compact for certain purposes, either can disregard any one pro¬ 
vision, and expect, nevertheless, the other to observe the rest! . . . 

“I have not hesitated to say, and I repeat, that, if the Northern 
States refuse, willfully and deliberately, to carry into effect that part 
of the Constitution which respects the restoration of fugitive slaves, 
and Congress provides no remedy, the South would no longer be bound 
to observe the compact. A bargain can not be broken on one side, 
and still bind the other side.” 

Entirely in accord with these truths are the arguments of 
Mr. Madison, in the “Federalist,’’ to show that the great prin¬ 
ciples of the Constitution are substantially the same as those 
of the Articles of Confederation. He says: 

“1 ask, What are these principles? Do they require that, in the 
establishment of the Constitution, the States should be regarded as 
distinct and independent sovereigns? They are so regarded by the 
Constitution proposed. ... Do these principles, in fine, require 
that the powers of the General Government should be limited, and 


Secession , Historical Facts to Support Right 


381 


that, beyond this limit, the States should be left in possession of their 
sovereignty and independence? We have seen that, in the new Gov¬ 
ernment as in the old, the general powers are limited; and that the 
States, in all unenumerated cases, are left in the enjoyment of their 
sovereign and independent jurisdiction. 

The truth is, that the great principles of the Constitution proposed 
by the Convention may be considered less absolutely new, than as 
the expansion of principles which are found in the Articles of Con¬ 
federation” 

Mr. Everett says: 

The States are not named in it; the word sovereignty does not oc¬ 
cur in it; the right of secession is as much ignored in it as the pro¬ 
cession of the equinoxes. We have seen how very untenable is the as¬ 
sertion that the States are not named in it, and how much pertinency 
or significance in the omission of the word sovereignty. The perti¬ 
nent question that occurs is, why was so obvious an attribute of sov¬ 
ereignty not expressly renounced if it was intended to surrender it? 
It certainly existed; it was not surrendered; therefore it still exists. 
This would be a more national and rational conclusion than that it 
has ceased to exist because it is not mentioned. 

The simple truth is, that it would have been a very extraordinary 
thing to incorporate into the Constitution any express provision for 
the secession of the States and dissolution of the Union. Its founders 
undoubtedly desired and hoped that it would be perpetual; against 
the proposition for power to coerce a State, the argument was that 
it would be a means, not of preserving, but of destroying, the Union. 

Mr. Davis, in The Rise and Fall of The Confederate Govern¬ 
ment, Vol. I, p. 178, says: 

The ratification of the Constitution by Virginia has already been 
quoted, in which the people of that State, through their Convention, 
did expressly “declare, and make known that the powers granted un¬ 
der the Constitution, being derived from the people of the United 
States, may be resumed by them, whensoever the same shall be per¬ 
verted to their injury or oppression, and that every power not granted 
thereby remains with them and at their will.” 

New York and Rhode Island were no less explicit, both declaring 
that “the powers of government may be reassumed by the people when¬ 
ever it shall become necessary to their happiness.” 

These expressions are not mere obiter dicta, thrown out incident¬ 
ally, and entitled only to be regarded as an expression of opinion by 
their authors. 

In the language of the Declaration of Independence, “All experience 
hath shown that mankind are more disposed to suffer, while evils are 
sufferable, than to right themselves by abolishing the forms to which 
they are accustomed.” Would not real grievances be rendered more 
tolerable by the consciousness of power to remove them; and would 
not even imaginary wrongs be embittered by the manifestation of a 
purpose to make them perpetual? To ask these questions is to an¬ 
swer them. 


382 


Secession , Historical Facts to Support Right 


The wise and brave men who had, at much peril and great sacri¬ 
fice, secured the independence of the States, were as little disposed 
to surrender the sovereignty of the State as they were anxious to 
remedy the defects of the Confederation. The Union they formed was 
not to destroy the States, but to “secure the blessings of liberty to 
ourselves and our posterity.” Davis on The Rise and Fall of The 
Confederate Government, Vol. I, 176. 

Edmund Randolph, Governor of Virginia, although the mover of 
the original proposition to authorize the employment of the forces 
of the Union against a delinquent member, which had been so signally 
defeated in the Federal Convention, afterward in the Virginia Con¬ 
vention, made an eloquent protest against the idea of the employment 
of force against the State. “ ‘What species of military coercion,’ could 
the General Government adopt for the enforcement of obedience to 
its demands? Either an army sent into the heart of a delinquent 
State, or blocking up its ports. Have we lived to this, then, that, in 
order to suppress and exclude tyranny, it is necessary to render the 
most affectionate friends the most bitter enemies, set the father 
against the son, and make the brother slay the brother? Is this the 
happy expedient that is to preserve liberty? Will it not destroy it? 
If any army be once introduced to force us, if once marched into Vir¬ 
ginia, figure to yourselves what the dreadful consequence will be; 
the most lamentable civil war must ensue.” 

We have seen already how vehemently the idea of judicial coercion 
was repudiated by Hamilton, Marshall, and others. The suggestion of 
military coercion was uniformly treated, as in the above extracts, with 
still more abhorrence. No principle was more fully and firmly set¬ 
tled on the highest authority than that, under our system, there could 
be no coercion of a State. Davis on The Rise and Fall of The Con¬ 
federate Government, Vol. I, 178-9. 

The Boston memorial to Congress as prepared by a Committee with 
Mr. Webster at its head, said that the new States “are universally 
considered as admitted into the Union upon the same footing as the 
original States, and as possessing, in respect to the Union, the same 
rights of sovereignty, freedom, and independence, as the other 
States.” 

But, with regard to States formed of territory acquired by pur¬ 
chase from France, Spain, and Mexico, it is claimed that, as they 
were bought by the United States, they belong to the same, and have 
no right to withdraw at will from an association the property which 
had been purchased by the other parties. 

Happy would it have been if the equal rights of the people of all 
the States to the enjoyment of territory acquired by the common 
treasure could have been recognized at the proper time! There would 
then have been no secession and no war. Davis on The Rise and Fall 
of The Confederate Government, Vol. I, 181. 

The treaty by which the Louisiana territory was ceded to the 
United States expressly provided that the inhabitants thereof should 
be “admitted, as soon as possible, according to the principles of the 
Federal Constitution, to the enjoyment of all the rights, advantages, 
and immunities of citizens of the United States.” In all other ac- 


383 


Secession, Historical Facts to Support Eight 

quisitions of territory the same stipulation is either expressed or im¬ 
plied. Indeed, the denial of the right would be inconsistent with the 
character of American political institutions. Davis on The Rise and 
Fall of The Confederate Government, Vol. I, 181-2. 

Mr. Davis, the president of the seceding States, thus states 
his own views as to the right of a State to secede from the 

Union: 

The right of a State to secede from the Union—that is, to with¬ 
draw the powers it had granted by virtue of a sovereignty which it 
had never delegated—was a right never disputed by the generation 
that established the Constitution. Davis on the History of the Con¬ 
federate States, 50. 

The present Union owes its very existence to the dissolution, by 
separate secession, of its members, from the former Union, which, in 
its organic principles, rested upon precisely the same foundation. 
Davis on the History of the Confederate States, 50. 

The alternative to secession is coercion. That is to say, if no right 
of secession exists—if it is forbidden by the Constitution or hostile to 
it—then it is a wrong for which a remedy must lawfully be provided; 
which, in such case, could only be the use of force against the State 
attempting to withdraw. Davis on the History of the Confederate 
States, 51. 

A little consideration of these plain and irrefutable truths will 
show how utterly unworthy and false are the vulgar taunts which at¬ 
tribute “treason” to those who, in the late secession of the Southern 
States, were loyal to the only sovereign entitled to their allegiance; 
and which still more absurdly prate of the violation of oaths to sup¬ 
port “the Government,” an oath which no citizen could have been 
lawfully required to take, and which must have been ignorantly con¬ 
founded with the prescribed oath to support the Constitution. Davis 
on the History of the Confederate States, 52. 

i( Salus republicae lex suprema .” Above that supreme written law 
stands the safety of the Commonwealth, which will be secured, if pos¬ 
sible in conformity with the Constitution; but if that be not possi¬ 
ble, then by evading it, or even overriding the Constitution. This is 
what happened in the Civil War, when men said that they would 
break the Constitution in order to preserve it. Bryce's American 
Commonwealth, Vol. I, 387-8. 

This was Lincoln’s position; on this theory, he waged the 
war: 

In a remarkable letter written to Mr. Hodges (4th April, 1864), 
President Lincoln said: “My oath to preserve the Constitution im¬ 
posed on me the duty of preserving by every indispensable means that 
government, the nation, of which the Constitution is the organic law. 
Was it possible to lose the nation and yet to preserve the Constitu¬ 
tion? By general law, life and limb must be protected, yet often a 
limb must be amputated to save a life, but a life is never wisely given 


384 


Secession, Historical Facts to Support Eight 


to save a limb. I felt that measures, otherwise unconstitutional, 1 
might become lawful by becoming indispensable to the preservation 
of the Constitution through the preservation of the nation. Right or 
wrong I assumed this ground, and now avow it. I could not feel that 
to the best of my ability I had even tried to preserve the Constitution, 
if, to save slavery, or any minor matter, I should permit the wreck 
of government, country, and Constitution altogether.” Bryce's Ameri¬ 
can Commonivealth, Vol. I, 388, note. 

Mr. Madison thus speaks of the right: 

Secession presents a question more particularly between the States 
themselves, as parties to the constitutional compact; and the great ar¬ 
gument for it is derived from the sovereignty of the parties; as if the 
more complete the authority to enter into a compact, the less was the 
obligation to abide by it. It is but fair to observe, that those who 
assert the right present it in forms essentially different; some as a 
right always existing, and to be used at pleasure; others as a right 
created by extreme cases requiring it. The latter class are wrong only 
in using terms which confound them with the former. 

Of late, attempts are observed to shelter the heresy of secession un¬ 
der the case of expatriation, from which it essentially differs. The 
expatriating party removes only his person and his movable property, 
and does not incommode those whom he leaves. A seceding State 
nullifies the domain, and disturbs the whole system from which it 
separates itself. Pushed to the extent in which the right is some¬ 
times asserted, it might break into fragments every single community. 
4 Writings of Madison, pp. 269-270. 

While Mr. Madison was opposed to both nullification and 
secession, he like Jefferson and Webster, admitted there was 
a limit beyond which submission to misrule was not a virtue. 
Mr. Madison says: 

It is true that, in extreme cases of oppression justifying a resort 
to original rights, and in which passive obedience and non-resistance 
cease to be obligatory under any Government, a single State or any 
part of a State might rightfully cast off the yoke. What would be the 
condition of the Union, and the other members of it, if a single mem¬ 
ber could at will renounce its connection, and erect itself, in the 
midst of them, into an independent and foreign power; its geographi¬ 
cal relations remaining the same, and all the social and political rela¬ 
tions, with the others, converted into those of aliens and rivals, not 
to say enemies, pursuing separate and conflicting interests? 4 Writ¬ 
ings of Madison, p. 225. 

The essential difference between a free government and govern¬ 
ments not free, is, that the former is founded in compact, the parties 
to which are mutually and equally bound by it. Neither of them, there¬ 
fore, can have a greater right to break off from the bargain, than the 
other or others have to hold them to it. And certainly there is noth- 

1 It seems, as Mr. Bryce says, it was of it and the union. Public opinion 
necessary to evade or violate parts of was the sovereign and the master, not 
the Constitution to save the remainder the wr’tten law. 


385 


Secession, Historical Facts to Support Eight 

ing in the Virginia resolutions of 1789 adverse to this principle, which 
is that of common sense and common justice. The fallacy which draws 
a different conclusion lies in confounding a single party with the 
parties to the constitutional compact of the United States. The latter 
having made the compact, may do what they will with it. The former, 
as one only of the parties, owes fidelity to it till released by consent, 
or absolved by an intolerable abuse of the power created. 1 4 Writings 
of Madison , p. 228. 

Mr. Calhoun, addressing the Senate with all the earnestness 
of his nature, and with that sincere desire to avert the danger 
of disunion which those who knew him best never doubted, 
had asked the emphatic question, “How can the Union be 
saved V’ He answered his question thus : 

“There is but one way by which it can be saved with any 
certainty; and that is by a full and final settlement, on the 
principles of justice, of all the questions at issue between the 
sections. The South asks for justice—simple justice—and 
less she ought not to take. She has no compromise to offer 
but the Constitution, and no concession or surrender to 
make. . . . 

“Can this be done? Yes, easily! Not by the weaker party; 
for it can of itself do nothing—not even protect itself—but by 
the stronger. . . . But will the North agree to do this? It 

is for her to answer this question. But, I will say, she can not 
refuse if she has half the love of the Union which she pro¬ 
fesses to have, nor without exposing herself to the charge that 
her love of power and aggrandizement is far greater than her 
love of the Union.” 

When the Alien and Sedition Laws were passed in 1798, 
during Adams’ administration, a number of States declared 
the right to withdraw, or to nullify the statutes claimed by 
the States to be unconstitutional. See the Virginia and Ken¬ 
tucky Resolutions drafted by Madison and Jefferson. A valua¬ 
ble summary of the authorities on this subject may be v found 
in Foster on the Constitution, Vol. 1, pp. 110-150. 

In 1811, during the debate on the bill for the admission of 
Louisiana as a State, Josiah Quincy, a member from Massa¬ 
chusetts, said in the House of Representatives: 

“It is my deliberate opinion that if this bill passes the 
bonds of this Union are virtually dissolved; that the States 
which compose it are free from their moral obligation and 

J This was the doctrine asserted by to be bound by the Constitution, and 
the Southern States. Public opinion the Southern States claimed that they 
in the Northern States had declined were thereby absolved from it. 


3.86 Secession, Historical Facts to Support Right 

that, as it will be the right of all, so it will be the duty of 
some, definitely to prepare for separation, amicably if they 
can, violently if they must.” 

The Speaker, Joseph B. Varnum of the same State, held that 
the language was disorderly, but the House by a vote of fifty- 
six to fifty-three reversed the ruling. 

In 1844, the legislature of Massachusetts passed a series of 
resolutions upon the annexation of Texas, containing the 
threat, “That the project of the annexation of Texas, unless 
arrested on the threshold, may drive these States into a dis¬ 
solution of the Union.” 

On the same subject, February 22d, 1845, the same body 
adopted another series of resolutions, which included the 
statement that, 

“As the powers of legislation granted in the Constitution of 
the United States to Congress, do not embrace the case of the 
admission of a foreign state, or foreign territory, by Legis¬ 
lation, into the Union, such an act of admission would have no 
binding force whatever on the people of Massachusetts.” 

The President of the Confederate States, Jefferson Davis, 
among other things gives the following reasons to sustain the 
right of any State to secede from the Union. 

The British Colonies of North America—subsequently the United 
States—had a common allegiance to the British Crown. Otherwise they 
were as distinct from one another as they were from Canada, Nova 
Scotia, and the American islands owned by Great Britain. When, by 
the violation of both charter and inalienable rights, for which neither 
redress nor security against repetition could be obtained, some of the 
colonies decided to sever their connection with the British Crown, 
they formed an alliance, declared themselves free and independent 
States, and, with their united strength, made such vigorous resistance 
to the efforts of the Mother Country to reduce them to subjection 
that, finally, a Treaty of Peace was made, in September, 1783, in the 
following words: 

“Article I. His Britanic Majesty acknowledges the said United 
States, viz.: New Hampshire, Massachusetts Bay, Rhode Island, New 
Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, 
South Carolina, and Georgia, to be free, sovereign, and independent 
States; that he treats with them as such.” Davis on the History of 
the Confederate States, pp. 1-2. 

The States, now recognized as free and independent, had, in No¬ 
vember, 1777, agreed upon “Articles of Federation and Perpetual 
Union,” which were referred to the Legislatures of the several States, 
and, being duly approved, were adopted by the Congress on the 9th 
day of July, 1778. 


Secession, Historical Facts to Support Eight 


387 


Prom these “Articles of Confederation and Perpetual Union,” the 
subjoined extracts were made. 

“Article I. The style of this Confederacy shall be, the United 
States of America.” 

“Article II. Each State retains its sovereignty, freedom, and in¬ 
dependence, and every power, jurisdiction, and right which is not by 
the Confederation delegated to the United States in Congress assem¬ 
bled.” 

“Article X. In determining questions in the United States, in 
Congress assembled, each State shall have one vote.” 

“Article XIII. Each State shall abide by the determinations of the 
United States, in Congress assembled, on all questions which by this 
Confederation are submitted to them. And the articles of this Con¬ 
federation shall be inviolably observed by every State, and the Union 
shall be perpetual; nor shall any alteration at any time hereafter be 
made in any of the United States and be afterward confirmed by the 
Legislature of every State.” Davis on the History of the Confederate 
States, pp. 2-3. 

The Congress applied to the States for a grant of power to regu¬ 
late foreign trade and commerce, and to impose duties on imports to 
obtain the needed revenue. It was not found possible to obtain the 
unanimous assent of the States, and the current of events, including 
the hostile commercial policy of England, rendering the grant more 
and more obviously necessary to the general welfare, the Congress, on 
February 21, 1787. 

“Resolved, That it is expedient that, on the second Monday of May 
next, a convention of delegates, who shall have been appointed by the 
several States, be held in Philadelphia, for the sole and express pur¬ 
pose of revising the Articles of Confederation, and reporting to Con¬ 
gress and the several legislatures such alterations and provisions 
thereon as shall, when agreed to in Congress and confirmed by the 
States, render the Federal Constitution adequate to the exigencies of 
Government and the preservation of the Union.” 

This resolution has been quoted at length because it declares the 
sole purpose to be to revise the Articles of Confederation and recog¬ 
nizes the supremacy of the States as the power to confirm the resolu¬ 
tion to be submitted to their several legislatures. And it is to be 
remembered that it required the unanimous assent of the States to 
make any alteration in the Articles of Confederation. Davis on the 
History of the Confederate States, p. 304. 

“The ratification of the Convention of nine States shall be suffi¬ 
cient for the establishment of the Constitution between the States so 
ratifying the same.” 

Therefore the names of the States were not written in the pream¬ 
ble, as they had been in the first draft of the Constitution, and as had 
been done in the Articles of Confederation, but only the general ex¬ 
pression, “We, the People of the United States,” which could mean no 
more than the people of the ratifying States. 

If it be asked how could nine States consistently secede from the 
“Confederation and Perpetual Union,” of which they were a component 
part, and the terms of which Union could not be altered unless such 


388 


Secession, Historical Facts to Support Right 


alteration should “be confirmed by the Legislature of every State/ 
it is submitted, as an answer to the question, that the States, that is, 
the people of each State, had never surrendered their Sovereignty, 
a,nd, by virtue of it, if the Government failed to fulfill the end for 
which it was established, they had the unalienable right to “alter or 
to abolish it, and to institute a new government, laying its founda¬ 
tion on such principles and organizing its powers in such form, as 
to them should seem most likely to effect their safety and happiness.” 
Davis on the History of the Confederate States, p. k • 

In Convention it was agreed that such States as chose, not less 
than nine in number, might establish a new form of government; 
which necessarily involved separation from some of their associates 
in the Union which they had covenanted should be perpetual. George 
Washington presided over their Convention, and transmitted the Con¬ 
stitution drafted by it to the several States, to be ratified or rejected 
by the people of each State in convention assembled. 

The duty assigned to him was not perfunctorily performed; but, 
deeply anxious for the formation of the more perfect Union projected, 
which rested on the power of a State to secede from the old Union 
and accede to the new one—as provided by the closing Article (VII.) 
of the Constitution as submitted to the States—he exerted his great 
influence to secure ratification by the requisite number of States for 
the “establishment of the Constitution between the States so ratifying 
the same.” In one of his letters he asks “what the opponents of 
the Constitution in Virginia would do if nine other States should ac¬ 
cede to the Constitution?” 

After a time the Constitution was ratified by eleven States, and 
the “more perfect Union,” was organized, leaving two States—North 
Carolina and Rhode Island—sole representatives of the Confederation 
which had raised the Colonies to statehood and independence. The 
position of these two States conclusively proves that the sovereignty 
of each State was an admitted fact, and that it was a voluntary com¬ 
pact to which their assent was requested and from which it was 
withheld. 

The power of the States, in whole or in part, to withdraw from the 
Union of the Confederation, in 1787, has been conceded by the suc¬ 
ceeding generations, and the causes which led to the act have, in 
like manner, been admitted to be an all-sufficient justification. 

And this fact suggests the inquiry, Did the States, by the adoption 
of the new form of government, deprive themselves of that power? 
and if not, did there exist, in 1861, justifiable causes for its exer¬ 
cise? Davis on the History of the Confederate States, p. 5. 

Article X, in amendment of the Constitution (the more entitled to 
consideration because it was one of the conditions on which the Con¬ 
stitution was ratified), is in these words: 

“The powers not delegated to the United States by the Constitu¬ 
tion, nor prohibited by it to the States, are reserved to the States re¬ 
spectively or to the people” 

If nowhere is to be found the delegation by the States of sover¬ 
eignty to the United States, that remained with the States, severally, 
to be exercised thereafter as it had been in 1787. 


Secession, Historical Facts to Support Right 


389 


Elbridge Gerry, of Massachusetts, said, in reference to the power of 
nine States to withdraw from the Confederation: “If nine out of 
thirteen can dissolve the compact, six out of nine will be just as able 
to dissolve the new one hereafter.” Certainly the act of withdrawal, 
as provided, was to be by the States severally. The number agreeing 
to withdraw involved the power to maintain the new government, not 
the right of each to separate itself from the old one. That was a 
function of Sovereignty, and the terms of the Constitution recognized 
the right of each State to exercise it; and to Mr. Gerry’s contention 
it might be answered, the power inherently belongs not to a ma¬ 
jority, but to each State. 

It has sometimes been argued that the powers delegated by the 
States to the Federal Government included such as were only exer¬ 
cised by sovereigns. It suffices for the present to say that so did 
those which had been delegated to the Congress of the Confederation. 

The consideration of the second branch of the inquiry involves a 
comparison between the causes which led to secession in 1787 and 
1861. Davis on the History of the Confederate States, p. 6. 

The South, as a minority, was naturally attached to the Constitu¬ 
tion, as a guarantee of equal rights and protection to public and pri¬ 
vate interests. Her sons had gathered much glory under the flag of 
the Union; it was an emblem of free and independent States, and 
was the object of pride and affection of her people. A very large ma¬ 
jority of her people believed secession to be a remedy that could be 
peacefully exercised. The Southern States, one after another, passed 
Ordinances of Secession, but they made no adequate preparations for 
war, because it was generally believed none were necessary. At the 
instance of Virginia, leading now for peace as she had led for war 
in the revolutionary era, a call was issued inviting the States to a 
convention for the purpose of securing peace to the Union. The Con¬ 
vention met at Washington, D. C., on February 4, 1861, a majority of 
Northern and Northwestern States and eight of the Southern States 
being represented. The effort of the wise and patriotic members to 
secure some proper adjustment of existing issues proved unsuccessful. 

The States that had seceded met at Montgomery, Ala., February 
4, 1861, formed a Provisional Government by their delegates in Con¬ 
gress assembled, and by them a president and vice-president was 
elected, and the Provisional Government was inaugurated on. the 18th 
of the same month. 

Immediately thereafter commissioners were' sent to Washington 
with authority to negotiate with the Federal Government for a set¬ 
tlement of all issues between it and the seceded States on the basis 
of equality and good will. These efforts which continued to the ex¬ 
piration of Mr. Buchanan’s term and into the administration of Mr. 
Lincoln, proved as unproductive of the desired fruit as had the Peace 
Congress; and yet there were not wanting those among us who be¬ 
lieved that the Federal Government, having no grant in the Consti¬ 
tution, to use force against a State, would not attempt invasion, but, 
as did General Jackson, would limit their operations to collecting 
revenue from the outside of Southern ports. Davis on the History of 
the Confederate States, pp. 1-8. 


390 


Secession, Historical Facts to Support Right 


Mr. Davis, in his last speech before retiring from the United 
States Senate because his State, Mississippi, had seceded, said 
among other things: 

I rise, Mr. President, for the purpose of announcing to the Senate 
that I have satisfactory evidence that the State of Mississippi, by 
a solemn ordinance of her people, in convention assembled, has de¬ 
clared her separation from the Union States. Under these circum¬ 
stances, of course, my functions are terminated here. It has seemed 
to me proper, however, that I should appear in the Senate to announce 
that fact to my associates, and I will say but very little more. Davis 
on The Rise and Fall of The Confederate Government, Vol. I, 221. 

A great man who now reposes with his fathers, and who has often 
been arraigned for a want of fealty to the Union, advocated the doc¬ 
trine of nullification because it preserved the Union. It was because 
of his deep-seated attachment to the Union—the determination to 
find some remedy for existing ills short of severance of the ties which 
bound South Carolina to the other States—that Mr. Calhoun advo¬ 
cated the doctrine of nullification, which he proclaimed to be peace¬ 
ful, to be within the limits of State power, not to disturb the Union, 
but only to be a means of bringing the agent to the tribunal of the 
States for their judgment. 

Secession belongs to a different class of remedies. It is to be 
justified upon the basis that the States are sovereign. There was a 
time when none denied it. I hope the time may come again when a 
better comprehension of the theory of our Govenment, and the in¬ 
alienable rights of the people of the States, will prevent any one from 
denying that each State is a sovereign, and thus may reclaim the 
grants which it has made to any agent whomsoever. Davis on The 
Rise and Fall of The Confederate Government, Vol. I, 222. 

Senator Lane, of Oregon, on March 2, 1861, in replying to a speech 
of Andrew Johnson, then a Senator from Tennessee, said among other 
things: 

“Mr. President, the Senator from Tennessee complains of my re¬ 
marks on his speech. He complains of the tone and temper of what I 
said. He complains that I replied at all, as I was a Northern Sen¬ 
ator.” Davis on The Rise and Fall of The Confederate Government, 
Vol. I, 250. 

Sir, if there is, as I contend, the right of secession, then, when¬ 
ever a State exercises that right, this Government has no laws in that 
State to execute, nor has it any property in any such State than can 
be protected by the power of this Government. In attempting, how¬ 
ever, to substitute the smooth phrases “executing the laws” and “pro¬ 
tecting public property” for coercion, for civil war, we have an im¬ 
portant concession; that is, that this Government dare not go before 
the people with a plain avowal of its real purposes and of their con¬ 
sequences. No sir; the policy is to inveigle the people of the North 
into civil war, by masking the design in smooth and ambiguous terms. 
—(Congressional Globe, second session, Thirty-sixth Congress, p. 
1347.) Davis on The Rise and Fall of the Confederate Government, 
Vol. I, 251. 


Secession, Historical Facts to Support Right 


391 


The New York Tribune—the leading organ of the party which tri¬ 
umphed in the election of 1860—had said, soon after the result of that 
election was ascertained, with reference to secession: “We hold, with 
Jefferson, to the inalienable right of communities to alter or abolish 
forms of government that have become oppressive or injurious; and, 
if the cotton States shall decide that they can do better out of the 
Union than in it, we insist on letting them go in peace. The right to 
secede may be a revolutionary right, but it exists nevertheless; and 
we do not see how one party can have a right to do what another 
party has a right to prevent. We must ever resist asserted right of 
any State to remain in the Union and nullify or defy the laws there¬ 
of: to withdraw from the Union is quite another matter. And, when¬ 
ever a considerable section of our Union shall deliberately resolve to 
go out, we shall not use all coercive measures designed to keep her in. 
We hope never to live in a republic whereon one section is pinned to 
the residue by bayonets .” Davis on the Rise and Fall of The Con¬ 
federate Government, Vol. I, 252. 

The Tribune was far from being singular among its Northern con¬ 
temporaries in the entertainment of such views, as Mr. Greeley, its 
chief editor, has shown by many citations in his book, The American 
Conflict. The Albany Argus, about the same time, said, in language 
which Mr. Greeley characterizes as “clear and temperate:” “We sym¬ 
pathize with and justify the South as far as this: their rights have 
been invaded to the extreme limit possible within the forms of the 
Constitution; and, beyond this limit, their feelings have been insulted 
and their interests and honor assailed by almost every possible form 
of denunciation and invective; and, if we deemed it certain that the 
real animus of the Republican party could be carried into the admin¬ 
istration of the Federal Government, and become the permanent policy 
of the nation, we should think that all the instincts of self-preserva¬ 
tion and of manhood rightfully impelled them to a resort to revolution 
and a separation from the Union, and we would applaud them and 
wish them godspeed in the adoption of such a remedy.” 

Again, the same paper said, a day or two afterward: “If South 
Carolina or any other State, through a convention of her people, shall 
formally separate herself from the Union, probably both the present 
and the next Executive will simply let her alone and quietly allow 
all the functions of the Federal Government within her limits to be 
suspended. Any other course would be madness; as it would at once 
enlist all the Southern States in the controversy and plunge the whole 
country into a civil war. ... As a matter of policy and wisdom, 
therefore, independent of the question of right, we should deem re¬ 
sort to force most disastrous.” 

The New York Herald—a journal which claimed to be independent ' 
of all party influences—about the same period said: “Elach State is 
organized as a complete government, holding the purse and wielding 
the sword, possessing the right to break the tie of the confederation 
as a nation might break a treaty, and to repel coercion as a nation 
might repel invasion. . . . Coercion, if it were possible, is out of 
the question.” 

On the 31st of January, 1861—after six States had already seceded 
—a great meeting was held in the city of New York, to consider the 


392 


Secession, Historical Facts to Support Eight 


perilous condition of the country. At this meeting Mr. James S. 
Thayer, an old-line Whig, made a speech, which was received with 
great applause. The following extracts from the published report of 
Mr. Thayer’s speech will show the character of the views which then 
commanded the cordial approval of that metropolitan audience: 

“We can at least, in an authoritative way and a practical manner, 
arrive at the basis of a peaceable separation. (Cheers). We can at 
least by discussion enlighten, settle, and concentrate the public sen¬ 
timent in the State of New York upon this question, and save it from 
a fearful current, which circuitously but certainly sweeps madly on, 
through the narrow gorge of ‘the enforcement of the laws,’ to the 
shoreless ocean of civil war! (Cheers). Against this, under all cir¬ 
cumstances, in every place and form, we must now and at all times 
oppose a resolute and unfaltering resistance. The public mind will 
bear the avowal, and let us make it—that, if a revolution of force is 
to begin, it shall be inaugurated at home. And if the incoming Ad¬ 
ministration shall attempt to carry out the line of the policy that has 
been forshadowed, we announce that, when the hand of Black Repub¬ 
licanism turns to blood-red, and seeks from the fragment of the Con¬ 
stitution to construct a scaffolding for coercion—another name for 
execution —we will reverse the order of the French Revolution, and 
save the blood of the people by making those who would inaugurate a 
reign of terror the first victims of a national guillotine!” (Enthus¬ 
iastic applause.) 

And again: 

“It is announced that the Republican Administration will enforce 
the laws against and in all the seceding States. A nice discrimina¬ 
tion must be exercised in the performance of this duty. You remem¬ 
ber the story of William Tell. . . . Let an arrow winged by the 

Federal bow strike the heart of the American citizen, and who can 
number the avenging darts that will cloud the heavens in the conflict 
that will ensue? (Prolonged applause.) What, then, is the duty of 
the State of New York? What shall we say to our people when we 
come back to meet this state of facts? That the Union must be pre¬ 
served? But, if that can not be, what then? Peaceable separation. 
(Applause.) Painful and humiliating as it is, let us temper it with 
all we can of love and kindness, so that we may yet be left in a com¬ 
paratively prosperous condition, in friendly relations with another 
Confederacy.” (Cheers.) 

At the same meeting ex-Governor Horatio Seymour asked the ques¬ 
tion—on which subsequent events have cast their own commentary— 
whether successful coercion by the North is less revolutionary than 
successful secession by the South? “Shall we prevent revolution (he 
f added) by being foremost in overthrowing the principles of our Gov¬ 
ernment, and all that makes it valuable to our people and distinguish¬ 
es it among the nations of the earth?” 

The venerable ex-Chancellor Wallworth thus expressed himself: 

“It would be as brutal, in my opinion, to send men to butcher our 
own brothers of the Southern States as it would be to massacre them 
in the Northern States. We are told, however, that it is our duty to, 
and we must, enforce the laws. But why—and what laws are to be 
enforced? There were laws that were to be enforced in the time of 


Secession, Slavery Not Cause of 


393 


the American Revolution. . . . Did Lord Chatham go for enforcing 

those laws? No, he gloried in defense of the liberties of America. He 
made that memorable declaration in the British Parliament, ‘If 1 
were an American citizen, instead of being, as I am, an Englishman, 
I would never submit to such laws—never, never, never!’” (Pro¬ 
longed applause.) 

Other distinguished speakers expressed themselves in similar terms 
—varying somewhat in their estimate of the propriety of the secession 
of the Southern States, but all agreeing in emphatic and unqualified 
reprobation of the idea of coercion. A series of conciliatory resolu¬ 
tions was adopted, one of which declares that “civil wars will not 
restore the Union, but will defeat forever its reconstruction.” Davis 
on The Rise and Fall of The Confederate Government, Vol. I, 253-4-5. 

The “Union,” of Bangor, Maine, spoke no less decidedly to the 
same effect: 

“The difficulties between the North and the South must be com¬ 
promised, or the separation of the States shall be peaceable. If the 
Republican party refuse to go the full length of the Crittenden amend¬ 
ment— which is the very least the South can or ought to take —then, 
here in Maine, not a Democrat will be found who will raise his arm 
against his brethren of the South. From one end of the State to the 
other let the cry of the Democracy be, COMPROMISE OR PEACEA¬ 
BLE SEPARATION!” Davis on The Rise and Fall of The Confederate 
Government, Vol. I, 256. 

These extracts will serve to show that the people of the South were 
not without grounds for cherishing the hope, to which they so fondly 
clung, that the separation would, indeed, be as peaceable in fact as it 
was, on their part, in purpose; that the conservative and patriotic 
feeling still existing in the North would control the elements of sec¬ 
tional hatred and bloodthirsty fanaticism, and that there would be 
really no war. 

And here the ingenuous reader may very naturally ask, What be 
came of all this feeling? How was it that, in the course of a few 
weeks, it had disappeared like a morning mist? Where was the host 
of men who had declared that an army marching to invade the South¬ 
ern States should first pass over their dead bodies? No new question 
had risen—no change in the attitude occupied by the seceding States 
—no cause for controversy not already existing when these utter¬ 
ances were made. And yet the sentiments which they expressed were 
so entirely swept away by the tide of reckless fury which soon after¬ 
ward impelled an armed invasion of the South, that (with a few 
praiseworthy but powerless exceptions) scarcely a vestige of them was 
left. Not only were they obliterated, but seemingly forgotten. Davis 
on The Rise and Fall of The Confederate Government, Vol. I, 257. 

Slavery Not the Cause of Secession 

Men differed in their views as to the abstract question of its right 
or wrong, but for two generations after the Revolution there was no 
geographical line of demarkation for such differences. The African 
slave-trade was carried on almost exclusively by New England mer¬ 
chants and Northern ships. Mr. Jefferson—a Southern man, the 


394 


Secession, Prophecies as to 


founder of the Democratic party, and the vindicator of State rights— 
was in theory a consistent enemy to every form of slavery. The 
Southern States took the lead in prohibiting the slave-trade, and, as 
we have seen, one of them (Georgia) was the first State to incorporate 
such a prohibition in her organic Constitution. Eleven years after 
the agitation on the Missouri question, when the subject first took a 
sectional shape, the abolition was proposed and earnestly debated in 
the Virginia Legislature, and its advocates were so near the accom¬ 
plishment of their purpose, that a declaration in its favor was de¬ 
feated only by a small majority, and that on the ground of expedi¬ 
ency. At a still later period, abolitionist lecturers and teachers were 
mobbed, assaulted and threatened with tar and feathers in New York, 
Pennsylvania, Massachusetts, New Hampshire, Connecticut, and other 
States. One of them (Lovejoy) was actually killed by a mob in Illi¬ 
nois as late as 1837. 

These facts prove incontestably that the sectional hostility which 
exhibited itself in 1820, on the application of Missouri for admission 
into the Union, which again broke out on the proposition for the an¬ 
nexation of Texas in 1844, and which reappeared after the Mexican 
war, never again to be suppressed until its fell results had been fully 
accomplished, was not the consequence of any difference on the ab¬ 
stract question of slavery. It was the offspring of sectional rivalry 
and political ambition. It would have manifested itself just as cer¬ 
tainly if slavery had existed in all the States, or if there had not been 
a negro in America. No such pretension was made in 1803 or 1811, 
when the Louisiana purchase, and afterward the admission into the 
Union of the State of that name, elicited threats of disunion from the 
representatives of New England. The complaint was not of slavery, 
but of “the acquisition of more weight at the other extremity” of the 
Union. It was not slavery that threatened a rupture in 1832, but 
the unjust and unequal operation of a protective tariff. 

It happened, however, on all these occasions, that the line of 
demarkation of sectional interests coincided exactly or very nearly 
with that dividing the States in which negro servitude existed from 
those in which it had been abolished. It corresponded with the pre¬ 
diction of Mr. Pickering, in 1803, that, in the separation certainly to 
come, “the white and black population would mark the boundary”— 
a prediction made without any reference to slavery as a source of dis¬ 
sension. Davis on The Rise and Fall of The Confederate Government, 
Vol. I, 78-9. 

Prophecies As to Secession 

Mr. Webster in his great speech called “The Constitution 
and The Union, ’ ’ said : 

I hear with distress and anguish the word “secession,” especially 
when it falls from the lips of those who are patriotic, and known to 
the country, and known all over the world, for their political services. 
Secession! Peaceable secession! Sir, your eyes and mine are never 
destined to see that miracle. The dismemberment of this vast coun¬ 
try without convulsion! The breaking up of the fountains of the 
great deep without ruffling the surface! Who is so foolish, I beg 


Secession a Fundamental Right 


395 


everybody’s pardon, as 10 expect to see any such thing? Sir, he who 
sees these States, now revolving in harmony around a common centre, 
and expects to see them quit their places and fly off without convul¬ 
sion, may look the next hour to see the heavenly bodies rush from 
their spheres, and jostle against each other in the realms of space, 
without causing the wreck of the universe. There can be no such 
thing as a peaceable secession. Peaceable secession is an utter im¬ 
possibility. Is the great Constitution under which we live, covering 
this whole country, is it to be thawed and melted away by secession, 
as the snows on the mountain melt under the influence of a vernal 
sun, disappear almost unobserved, and run off? No, sir! No, sir! I 
will not state what might produce the disruption of the Union; but, 
sir, I see as plainly as I see the sun in heaven what that disruption 
itself must produce; I see that it must produce war, 1 and such a war 
as I will not describe, in its twofold character. 5 Webster's Works, 
(1th ed.), p. 361. 

I hear the cry of disunion, secession. The secession of individual 
States, to my mind, is the most absurd of all ideas. I should like to 
know how South Carolina is to get out of this Union. Where is she 
to go? The commercial people of Charleston say, with truth and 
propriety, if South Carolina secedes from the Union, we secede from 
South Carolina. The thing is absurd. A separate secession is an ab¬ 
surdity. It could not take place. It must lead to war. I do, indeed, 
admit the possibility that a great mass of the Southern States, if they 
should come so far north as to include Virginia, might make a South¬ 
ern confederation. 3 Webster's Works, (7th ed.), p. 591. 

In 1833 Mr. Madison wrote Mr. Clay as follows, as to the 
Southern States seceding: 

It is painful to observe the unceasing efforts to alarm the South 
by imputations against the North of unconstitutional designs on the 
subject of the slaves. You are right, I have no doubt, in believing 
that no such intermeddling disposition exists in the body of our 
Northern brethren. Their good faith is sufficiently guaranteed by 
the interest they have as merchants, as ship-owners, and as manu¬ 
facturers, in preserving a union with the slaveholding States. On 
the other hand, what madness in the South to look for safety in uis- 
union. It would be worse than jumping out of the frying-pan into 
the fire: it would be jumping into the fire for fear of the frying-pan. 
The danger from the alarm is, that the pride and resentment exerted 
by them may be an overmatch for the dictates of prudence, and favor 
the project of a Southern Convention, insidiously revived, as promis¬ 
ing, by its councils, the best securities against grievances of every 
sort from the North. If Writings of Madison, p. 301. 

Secession a Fundamental Right 

Mr. Calhoun thus stated the doctrine of Secession: 

That a State, as a party to the constitutional compact, has the 
right to secede,—acting in the same capacity in which it ratified the 

'Mr. Webster was here prophetic as well as eloquent. 


396 


Secession, Lincoln's Views as to 


constitution,—cannot, with any show of reason, be denied by any one 
who regards the Constitution as a compact,—if a power should be in¬ 
serted by the amending power, which would radically change the char¬ 
acter of the Constitution, or the nature of the system; or if the former 
should fail to fulfill the ends for which it was established. This re¬ 
sults, necessarily, from the nature of a compact,—where the parties 
to it are sovereign; and, of course, have no higher authority to which 
to appeal. That the effect of secession would be to place her in the 
relation of a foreign State to the others, is equally clear. Nor is it 
less so, that it would make her, (not her citizens individually,) re¬ 
sponsible to them, in that character. All this results, necessarily, from 
the nature of a compact between sovereign parties. 1 Calhoun's 
Works, p. 301. 

As to the Citizens of the State he says: 

They are bound to obey them, only, because the State, to which 
they owe allegiance, by ratifying, ordained and established it as its 
own constitution and government; just in the same way, in which it 
ordained and established its own separate constitution and govern¬ 
ment,—and by precisely the same authority. They owe obedience to 
both; because their State commanded them to obey; but they owe 
allegiance to neither; since sovereignty, by a fundamental principle 
of our system, resides in the people, and not in the government. The 
same authority which commanded obedience, has the right, in both 
cases, to determine, as far as they are concerned, the extent to which 
they were bound to obey; and this determination remains binding 
until rescinded by the authority which pronounced and declared it. 
1 Calhoun's Works, p. 302. 

Lincoln on Secession 

The following are Mr. Lincoln’s views of Secession and 
State Rights. In his first inaugural address, he said: 

I hold that in contemplation of the universal law and the Consti¬ 
tution of the United States, the Union of these States is perpetual. Per¬ 
petuity is implied, if not expressed, in the fundamental law of all 
national governments. It is safe to assert that no government proper 
ever had a provision in its organic law for its own termination. Con¬ 
tinue to execute all the express provisions of our National Constitution, 
and the Union will endure forever, it being impossible to destroy it 
except by some action provided for in the instrument itself. 

Again: If the United States be not a government proper, but an 
association of States in the nature of contract merely, can it, as a 
contract, be peaceably unmade by less than all the parties who made 
it? One party to a contract may violate it—break it, so to speak—but 
does it not require all to lawfully rescind it? 

Descending from these general principles, we find the proposition 
that in legal contemplation the Union is perpetually confirmed by the 
history of the Union itself. The Union is much older than the Con¬ 
stitution. It was formed, in fact, by the Articles of Association in 
1774. It was matured and continued by the Declaration of Inde¬ 
pendence in 1776. It was further matured, and the faith of all the 


397 


Secession, Dred Scott Decision as Cause of 

then thirteen States expressly plighted and engaged that it should be 
perpetual, by the Articles of Confederation in 1778. And finally, in 
1787, one of the declared objects for ordaining and establishing the 
Constitution was “to form a more perfect Union” 

But if destruction of the Union by one or by part only of the 
States be lawfully possible, the Union is less perfect than before the 
Constitution, having lost the vital elements of perpetuity. 

It follows from these views that no State upon its own mere mo¬ 
tion can lawfully get out of the Union; that resolves and ordinances 
to that effect are legally void, and that acts of violence within any 
State or States against the authority of the United States are insur¬ 
rectionary or revolutionary, according to circumstances. Messages and 
Papers of the Presidents, Vol. VI, p. 7. 

Secession and the Dred Scott Decision 

It is contended by many that Secession and the War be¬ 
tween the States was the result of a part of the Northern 
States refusing to abide by the decision of the Supreme Court 
of the United States, or to abide by or accept the construc¬ 
tion which the Court placed upon this provision of the Con¬ 
stitution. It was contended by the Southern States that the 
election of Mr. Lincoln meant that the Northern States, the 
President, and Congress, had determined that this decision 
was to be overruled, and the Constitution, as constructed by 
the Court, disregarded. This question was discussed by Mr. 
Lincoln in his inaugural address, as follows: 

I do not forget the position assumed by some that the constitu¬ 
tional questions are to be decided by the Supreme Court, nor do I 
deny that such decisions must be binding in any case upon the parties 
to a suit as to the object of that suit, while they are entitled to very 
high respect and consideration in all parallel cases by all other de¬ 
partments of the Government. And while it is obviously possible that 
such decision may be erroneous in any given case, still the evil effect 
following it, being limited to that limited case, with the chance that 
it might be overruled and never become a precedent for other cases, 
can better be borne than could the evils of a different practice. At 
the same time, the candid citizen must confess that if the policy of 
the Government upon vital questions affecting the whole people is to 
be irrevocably fixed by decisions of the Supreme Court, the instant 
they are made in ordinary litigation between parties in personal ac¬ 
tions the people will have ceased to be their own rulers, having to 
that extent practically resigned their Government into the hands of 
that eminent tribunal. Nor is there any assault upon the court or 
the judges. Messages and Papers of the Presidents, Vol. VI, p. 9. 

Secession at the Bar of the Supreme Court 

During the war the Northern States, Congress, and the 
President, contended that a State could not constitutionally, 


398 


Secession, How It Could Have Been Averted 


or lawfully secede or go out of the Union. As soon as the war 
was over and the seceding States surrendered, the same Con 
gress contended that the Southern States did secede and were 
out of the Union, and proceded to reconstruct them. The 
President, however, did not agree with Congress and, partly 
if not wholly, on this account Congress came near removing 
him by impeachment. The Supreme Court agreed with the 
President when the question at last reached that Court. 

In White v. Hart, 13 Wall. 646, the court, Mr. Justice Swayne de¬ 
livering the opinion, adjudged these positions wholly untenable. Geor¬ 
gia, it was held, had never been out of the Union; and though its 
rights under the Constitution had been suspended, to bring her back 
into full communion with the loyal States nothing was necessary 
but to permit her to restore her representative in Congress. The ac¬ 
tion of Congress in the premises cannot be inquired into, but must be 
accepted and followed by the judicial department. But Congress could 
sanction and legalize a violation of the Federal Constitution. Con¬ 
tracts for the sale or hire of slaves effected before emancipation were 
valid, and to take away all remedy for their enforcement impaired 
their obligation. A provision to that effect was consequently null, and 
the holders of such contracts might proceed as if it had never had an 
existence. The same views were reaffirmed in Osborn v. Nicholson, 
13 Wall. 654, arising under the Constitution of Kansas. Story on the 
Constitution, Vol. V, p. 710, (note). 

It was decided in the case of Texas v. White, 7 Wall. 700, 
that Texas was and remained a State, a member of the United 
States, after the Acts of Secession, and even during the war, 
and that Acts of Congress could not exclude her therefrom, 
and that she had a right to sue in the Federal Courts, as a 
State, notwithstanding the re-construction acts of Congress. 
It is there said that the Constitution in all its provisions looks 
to an indestructible union, composed of indestructible States. 

How Secession Could Have Been Averted 

Mr. Crittenden, of Kentucky, the oldest and one of the most hon¬ 
ored members of the Senate, introduced into that body a joint resolu¬ 
tion proposing amendments to the Constitution—among them the 
restoration and incorporation into the Constitution of the geographical 
line of the Missouri Compromise, with other provisions, which it was 
hoped might be accepted as the basis for an adjustment of the diffi¬ 
culties rapidly hurrying the Union to disruption. But the earnest 
appeals of that venerable statesman were unheeded by Senators of 
the so-called Republican party. Action upon his proposition was post¬ 
poned from time to time, on one pretext or another, until the last day 
of the session—when seven States had already withdrawn from the 
Union and established a confederation of their own—and it was then 
defeated by a majority of one vote. Davis on The Rise and Fall of 
The Confederate Government, Vol. 1, 60. 


Recession, The Immediate and Direct Cause of 399 

Had this resolution been acted on promptly, it would have 
passed, and Secession and the War between the States never 
would have occurred. The Constitution then not only allowed 
slavery, but it expressly provided that the institution should 
be protected by the Federal Government, and Congress had 
passed fugitive slave acts to enforce the Constitutional guar¬ 
anty. Some of the Northern States repudiated and publicly 
disregarded the Constitutional provision and Acts of Congress. 
They not only nullified the Acts of Congress, but the Consti¬ 
tution as well. The Abolitionists, and there were millions of 
them, openly and publicly denounced the Constitution and 
Acts of Congress on the subject. They denounced the Con¬ 
stitution in the pulpits as a “covenant with the devil and a 
league with hell.” There was a wide-spread determination in 
the North not to observe the Constitution, nor to allow the 
South their Constitutional rights. 

The Immediate Cause of Secession 

The result of the Presidential election of 1860 was the direct 
and immediate cause of the Southern States seceding. The 
people of these seceding States, or a majority thereof, believed 
that the incoming administration would not respect their po¬ 
litical and civil rights guaranteed to them under the Constitu¬ 
tion, that they were powerless to secure them in the Union, 
and that they were driven to one of two courses, to submit to 
being deprived of these constitutional rights or to withdraw 
from the Union, they chose the latter course. The adminis¬ 
tration denied their right or power, and attempted to coerce 
them by force to remain in the Union and to consider the peo¬ 
ple of these States who were attempting to secede as rebels. 
The Southern States never found fault with the Federal Con¬ 
stitution, they never demanded a right except such as the 
Constitution guaranteed to them. It was the Northern States 
which were displeased with the Constitution and refused to 
abide by it as construed by the Supreme Court of the un¬ 
seceded States in the Dred Scott decision. These States 
claimed that Congress had the right and power to control the 
question of slavery in all Territory of the United States, 
not forming a part of the State, while the Constitution as 
construed in this case denied this right or power to Congress. 

Mr. Davis, the first and only president of the Confederate 
States, thus states the immediate causes leading to the seces¬ 
sion by these States: 


400 


Secession, The Immediate and Direct Cause of 


The indignation with which the result of the Presidential election 
was received in the Southern States proceeded from no personal hos¬ 
tility to the President-elect, nor from the chagrin at the defeat of the 
Democratic candidates, but from the fact that the people of the South 
recognized in Mr. Lincoln the representative of a party professing prin¬ 
ciples destructive to “their peace, their prosperity, and their domestic 
tranquillity.” 

No rash or revolutionary action was taken by the Southern States. 
The measures for defense adopted were considerate, and were exe¬ 
cuted deliberately. Davis on the History of the Confederate States, 37. 

The character of the President in power now became an impor¬ 
tant factor in the situation. Mr. Buchanan’s freedom from sectional 
asperity, his long life in the public service, his conciliatory disposi¬ 
tion, his love of peace, and his reverence for the Constitution, were 
guarantees that he would not precipitate a conflict with any of the 
States. But it soon became evident that in the closing months of his 
administration he had little power to mould the policy of the future. 
Like all intelligent and impartial students of constitutional history, 
the President held that the Federal Government had no rightful power 
to coerce a State. Like his wise and patriotic predecessors in office, 
he believed that our Union rests upon public opinion, and can never 
be cemented by the blood of its citizens shed in civil war; that if it 
could not live in the affections of the people it must one day perish; 
and that although Congress may possess many means of preserving 
it by conciliation, the sword was not placed in their hand to pre¬ 
serve it by force. (Message of December Term, 1860). Davis on the 
History of the Confederate States, 37-8. 

It was still recalled that a proposition to authorize the use of 
force against a delinquent State, introduced into the Convention that 
framed the Constitution, had been defeated, b.ecause, as Mr. Madison 
urged, “the use of force against a State would look more like a declara¬ 
tion of war, and would probably be considered by the party attacked 
as a dissolution of all former compacts by which it might be bound.” 
Although the appeals to passion, preparing the Northern people to 
support a war against the Southern States, in the event of secession, 
were general and vehement, there were not wanting protests against 
this policy even in the ranks of the Republicans. But the strident 
roar of prejudice and passion drowned the still small voice of con¬ 
stitutional duty. Davis on the History of the Confederate States, 38. 

South Carolina, by unanimous vote of her Convention, on Decem¬ 
ber 20, I860, passed an Ordinance revoking her delegated powers and 
withdrawing from the Union. The other cotton planting States also 
made preparations for secession, but delayed final action for some time 
in the hope that Congress might avert the necessity by measures of con¬ 
ciliation. Seeing the hopelessness of delay, by the failure of all over¬ 
tures during the first month of the session, they hastened to exer¬ 
cise what was generally admitted to be an undoubted right apper¬ 
taining to their sovereignty as States, and the only peaceful remedy 
that remained for the evils already felt and the dangers feared. Davis 
on the History of the Confederate States, Jf3. 


Secession , The Immediate and Direct Cause of 401 

The Southern States have been persistently represented as the 
propagandists of slavery, and the Northern States as the defenders 
and champions of universal freedom. It has been dogmatically as¬ 
serted that the war between the States was caused by efforts on the 
one side to extend and perpetuate human slavery, and on the other 
tc resist it and establish liberty. Neither allegation is true. 

To whatever extent the question of slavery may have served as an 
occasion, it was far from being the cause of the war. 

As an historical fact, negro slavery existed in all the original thir¬ 
teen States. It was recognized by the Constitution. Owing to cli¬ 
matic, industrial and economical—not moral or sentimental—reasons, 
it had gradually disappeared in the Northern States, while it had 
persisted in the Southern States. The slave-trade was never conducted 
by the people of the South. It had been monopolized by Northern 
merchants and carried on in Northern ships. Men differed in their 
views as to the abstract question of the right or wrong of slavery; 
but, for two generations after the Revolution, there was no geograph¬ 
ical line of such differences. It was during the controversy over 
the Missouri question that the subject first took sectional aspect; 
but long after that period Abolitionists were mobbed and assaulted in 
the North, Lovejoy, for example, was killed in Illinois in 1837. 

These facts prove that the sectional hostility which first appeared 
in 1820, in the Missouri controversy, and again broke out on the pro¬ 
position to annex Texas, in 1844, and reappeared after the Mexican 
war, never again to be suppressed until its full results had been 
fully accomplished, was not the consequence of any differences on the 
abstract question of slavery. It was the offspring of sectional rivalry 
and political ambition. Davis on the History of the Confederate 
States, -H* 

In 1803 and 1811, when the Louisiana Purchase, and afterward the 
admission of the State of Louisiana, created threats of disunion from 
the representatives of New England, it is not pretended that the ex¬ 
istence of slavery was the ground of opposition. The complaint then 
was not of slavery, but of the acquisition of more weight at the other 
extremity of the Uhion. It was not slavery that threatened a rupture 
in 1832, but an unjust and unequal tariff. 

Of course, the diversity of institutions contributed to the conflict 
of interests. I am stating general principles, not defining modifica¬ 
tions and exceptions with the procession of a mathematical proposi¬ 
tion. The truth remains, intact and incontrovertible, that the exist¬ 
ence of African servitude was in nowise the cause of the conflict, but 
only an incident of it. In the later controversies, however, its effect 
as a lever in operating on the passions, prejudices, and sympathies 
of men was so potent that it has darkened the whole horizon of his¬ 
toric truth. 

I have not attempted, therefore, and shall not permit myself to 
be drawn into any discussion of the merits or demerits of slavery 
as an ethical or even as a political question. Such discussion would 
only serve to divert attention from the genuine issue involved. 

As to the institution of negro slavery, it was entirely subject to 
the control of the States. No power was given to the General Gov¬ 
ernment to interfere with it; but an obligation was imposed to protect 


402 


Fort Sumter, As Cause of War 


it. Its existence and validity were distinctly recognized by the Con¬ 
stitution in the apportionment of direct taxation and representation, 
in the provision for extinguishing the slave-trade, and in the article 
providing for the rendition of fugitives from service and labor. Davis 
on the History of the Confederate States, Jf5. 

It was not the passage of the “Personal Liberty Laws,” it was not 
the circulation of incendiary documents, it was not the raid of John 
Brown, it was not the operation of unjust and unequal tariff laws, 
that constituted the intolerable grievance; but it was also the sys¬ 
tematic and persistent struggle to deprive the Southern States of 
equality in the Union, and generally to discriminating against the 
interests of their people, culminating in their exclusion from the 
Territories, the common property of the States, as well as by the in¬ 
fraction of their compact to promote domestic tranquillity. Davis on 
the History of the Confederate States, 1^6. 

The Dred Scott Case conclusively establishes the fact that 
the Southern States were claiming to stand by the Constitu¬ 
tion as construed by the Constitutional authority and that the 
Northern States and the administration of the Federal Govern¬ 
ment beginning in 1861 would not be bound by this construc¬ 
tion of the Constitution. Mr. Davis says of it: 

After long and patient consideration of the case the decision of the 
Supreme Court was pronounced by Chief Justice Taney, seven of the 
nine Judges who composed the Court concurring in it. The salient 
points established by the decision were, that persons of the African 
race were not and could not be acknowledged as “part of the people,” 
or citizens under the Constitution; that Congress had no right to ex¬ 
clude citizens of the South from taking their negro servants or any 
other property into any part of the common territory, and that they 
were entitled to its protection therein; and, finally, as a consequence 
of this principle, that the Missouri Compromise of 1820, in so far 
as it prohibited the existence of African servitude- north of a desig¬ 
nated line, was unconstitutional and void. 

Instead of accepting the decision of this then august tribunal as 
conclusive of a controversy that had long disturbed the peace and 
was threatening the perpetuity of the Union, it was flouted, denounced, 
and utterly disregarded by the Northern agitators, and served only to 
stimulate the intensity of their sectional hostility. 

What resource for justice, what assurance of tranquillity, what 
guarantee of safety, now remained for the South? No alternative re¬ 
mained except to seek, out of the Union, that security which they 
had vainly endeavored to obtain within it. The hope of our people 
may be stated in a sentence: it was to escape from injury and strife 
within the Union; to find prosperity and peace out of it. Davis on 
the History of the Confederate States, Ifi. 

The Occupation of Fort Sumter 

On the secession of South Carolina, the conditions of the defences 
of Charleston Harbor became a subject of general anxiety. Of the 


Fort Sumter , As Cause of War 


403 


three forts of the harbor, one only—Fort Moultrie—was occupied, and 
that was held by a garrison of less than a hundred effective men, un¬ 
der the command of Major Robert Anderson. 

About two weeks before the passage of the Ordinance of Secession 
the congressional representatives of South Carolina called on Presi¬ 
dent Buchanan, to assure him, in anticipation of that event, that the 
State authorities had no immediate intention of attacking or mo¬ 
lesting the Federal forts, provided that no reinforcements should be 
sent and that the military situation should remain unchanged. While 
he declined to make any formal pledge, the delegation understood the 
President as approving this suggestion. Subsequent developments 
have shown, however, that, both before and after the secession of 
South Carolina, preparations were secretly made for reinforcing Ma¬ 
jor Anderson. Davis on the History of Confederate States, 56. 

Mr. Davis, President of the Confederacy, thus describes the 
unfortunate affair: 

Before commissioners could communicate with the President an 
event occurred which changed the whole aspect of affairs. On De¬ 
cember 26th, the whole country was electrified by the news that, dur¬ 
ing the previous night, Major Anderson had dismantled Fort Moul¬ 
trie, spiked his guns, burned his gun-carriages, and removed his com¬ 
mand to Fort Sumter, which occupied a more commanding position 
in the harbor. 

This action was regarded by the Government and people of South 
Carolina as a violation of the implied pledge of a maintenance of the 
status quo. The remaining forts and other public property were at 
once taken possession of by the State, and the condition of public 
opinion became greatly excited. An interview between the Presi¬ 
dent and the commissioners was followed by a sharp correspondence, 
and negotiations were soon abruptly broken off. 

In the meantime, Mr. Cass, Secretary of State, had resigned be¬ 
cause, it was said, the President had refused to send reinforcements 
to Charleston; and on the occupation of Fort Sumter, which he re¬ 
garded as a violation of the pledge given or implied by the Govern¬ 
ment, Mr. Floyd resigned, because the President refused to withdraw 
the garrison from the harbor. 

Personally, I urged the President to withdraw this garrison, as it 
only served as a menace—for it was utterly incapable of holding the 
fort if attacked; while nothing would have operated more powerfully 
to quiet the apprehension and allay the resentment of the people of 
South Carolina than the withdrawal of the impotent menace. Mr. 
Buchanan’s abiding hope was to avert a collision, or at least to post¬ 
pone it beyond the close of his official term. The management of 
the whole affair was what Talleyrand described as something worse 
than a crime—a blunder. Whatever treatment the case demanded 
should have been prompt. To wait was fatuity. 

The ill-advised attempt to reinforce and provision Fort Sumter by 
the steamer Star of the West resulted in the repulse of that vessel at 
the mouth of the harbor. On January 9th, on her refusal to heave 


404 


Fort Sumter, As Cause of War 


to, she was fired upon, and she put back to sea with her supplies and 
concealed recruits. Davis on the History of the Confederate States, 
57. 

The sites of forts, arsenals, navy-yards, and other public property 
of the Federal Government were ceded by the States, within whose 
limits they were, subject to the condition, either expressed or implied, 
that they should be used solely and exclusively for the purposes for 
which they were granted. The ultimate ownership of the soil, or 
eminent domain, remain with the people of the State in which it lies, 
by virtue of their sovereignty. Thus, the State of Massachusetts has 
declared that— 

“The sovereignty and jurisdiction of the Commonwealth extend to 
all places within the boundaries thereof, subject only to such rights 
of concurrent jurisdiction as have been or may be granted over any 
places ceded by the Commonwealth to the United States.” Davis on 
The Rise and Fall of The Confederate Government, Vol. I, 209. 

On the secession of South Carolina, the condition of the defenses 
of Charleston Harbor became a subject of anxiety with all parties. 
Of the three forts in or at the entrance of the harbor, two were un¬ 
occupied, hut the third (Fort Moultrie) was held by a garrison of 
but little more than one hundred men—of whom sixty-three were 
said to be effectives—under command of Major Robert Anderson, of 
the First Artillery. 

About twelve days before the secession of South Carolina, the 
representatives in Congress from that State had called on the Presi¬ 
dent to assure him, in anticipation of the secession of the State, that 
no purpose was entertained by South Carolina to attack, or in any 
way molest, the forts held by the United States in the harbor of 
Charleston—at least until opportunity could be had for an amicable 
settlement of all questions that might arise with regard to these 
forts and other public property—provided that no re-enforcements 
should be sent, and the military status should be permitted to re¬ 
main unchanged. The South Carolinians understood Mr. Buchanan 
as approving of this suggestion although declining to make any 
formal pledge. 

It appears, nevertheless, from subsequent developments, that both 
before and after the secession of South Carolina preparations were 
secretly made for re-enforcing Major Anderson, in case it should be 
deemed necessary by the Government of Washington. On the 11th 
of December instructions were communicated to him, from the War 
Department, of which the following is the essential part. 

“You are carefully to avoid every act which would needlessly tend 
to provoke aggression; and for that reason you are not, without evi¬ 
dent and imminent necessity, to take up any position which could 
be construed into the assumption of a hostile attitude, but you are 
to hold possession of the forts in this harbor, and, if attacked, you 
are to defend yourself to the last extremity. The smallness of your 
force will not permit you, perhaps, to occupy more than one of the 
three forts, but an attack on, or attempt to take possession of either 
of them, will be regarded as an act of hostility, and you may then 
put your command into either of them which you may deem most 


Fort Sumter, Evacuation of 


405 


proper to increase its power of resistance. You are also authorized 
to take similar defensive steps, whenever you have tangible evi¬ 
dence of a design to proceed to a hostile act.” 

These instructions were afterward modified—as we are informed 
by Mr. Buchanan—so as, instead of requiring him to defend himself 
“to the last extremity,” to direct him to do so as long as any reason¬ 
able hope remained of saving the fort. Davis on The Rise and Fall 
of The Confederate Government, Vol. I, 212-13. 

Another Commissioner (the Hon. I. W. Hayne) was sent to Wash¬ 
ington by the Governor of South Carolina, to effect, if possible, an 
amicable and peaceful transfer of the fort, and settlement of all ques¬ 
tions relating to property. This Commissioner remained for nearly 
a month, endeavoring to accomplish the objects of his mission, but 
was met only by evasive and unsatisfactory answers, and eventually 
returned without having effected anything. 

There is one passage in the last letter of Colonel Hayne to the 
President which presents the case of the occupancy of Port Sumter by 
the United States troops so clearly and forcibly that it may be proper 
to quote it. He writes as follows: 

“You say that the fort was garrisoned for our protection, and is 
held for the same purposes for which it has been ever held since its 
construction. Are you not aware, that to hold, in the territory of a 
foreign power, a fortress against her will, avowedly for the purpose 
of protecting her citizens, is perhaps the highest insult which one 
government can offer to another? But Fort Sumter was never gar¬ 
risoned at all until South Carolina had dissolved her connection with 
your Government. This garrison entered it in the night, with every 
circumstance of secrecy, after spiking the guns and burning the gun- 
carriages and cutting down the flag-staff of an adjacent fort, which 
was then abandoned. South Carolina had not taken Fort Sumter into 
her possession, only because of her misplaced confidence in a Govern¬ 
ment which deceived her.” Davis on The Rise and Fall of The Con¬ 
federate Government, Yol. I, 219. 

The Evacuation of Fort Sumter 

Mr. Davis, as president of the Confederacy, sent a commis¬ 
sion to Washington to confer with the President of the Union 
States as to the forts in the Southern States. This commis¬ 
sion consisted of Judge Campbell, a Justice of the Supreme 
Court of the United States, but who resigned when Alabama, 
his home State, seceded; Mr. Crawford, a Judge of the Su¬ 
preme Court of Georgia; and Mr. Forsyth, of Alabama. 

Mr. Davis gives this account, among other things, as to the 
acts of the Commission, the mode with which they were 
treated and the results of their efforts: 

On the 12th of March—eight days after the inauguration of Mr. 
Lincoln—the two commissioners then present, Messrs. Forsyth and 
Crawford, addressed to Mr. Seward, Secretary of State, a note in¬ 
forming him of their presence, stating the friendly and peaceful pur- 


406 


Fort Sumter, Evacuation of 


poses of their mission, and requesting the appointment of a day, as 
early as possible, for the presentation to the President of the United 
States of their credentials and the objects which they had in view. 
Davis on The Rise and Fall of The Confederate Government , YoU 
1, 266. 

No written answer to the note of the Commissioners was delivered 
to them for twenty-seven days after it was written. The paper of Mr. 
Seward, in reply, without signature or address, dated March 15th, 
was “filed,” as he states, on that day, in the Department of State, but 
a copy of it was not handed to the Commissioners until the 8th of 
April. But an oral answer had been made to the note of the Com¬ 
missioners at a much earlier date, for the significance of which it 
will be necessary to bear in mind the condition of affairs at Charles¬ 
ton and Pensacola. Davis on The Rise and Fall of The Confederate 
Government, Vol. I, 266. 

The letter of the Commissioners to Mr. Seward was written, as 
we have seen, on the 12th of March. The oral message, above men¬ 
tioned, was obtained and communicated to the Commissioners through 
the agency of the two judges of the Supreme Court of the United 
States—Justices Nelson, of New York, and Campbell, of Alabama. On 
the 15th of March, according to the statement of Judge Campbell, 
Mr. Justice Nelson visited the Secretaries of State and of the Treas¬ 
ury and the Attorney-General (Messrs. Seward, Chase, and Bates), 
to dissuade them from undertaking to put in execution any policy of 
coercion. “During the term of the Supreme Court he had very care¬ 
fully examined the laws of the United States to enable him to attain 
his conclusions, and from time to time he had consulted the Chief 
Justice (Taney) upon the questions which his examination had sug¬ 
gested. His conclusion was that, without very serious violations of 
Constitution and statutes, coercion could not be successfully effected 
by the executive department.” Davis on The Rise and Fall of The 
Confederate Government, Vol. I, 267. 

The result of the interview between these two distinguished gen¬ 
tlemen, we are informed, was another visit, by both of them, to the 
State Department, for the purpose of urging Mr. Seward to reply to 
the Commissioners, and assure them of the desire of the United 
States Government for a friendly adjustment. Mr. Seward seems to 
have objected to an immediate recognition of the Commissioners, on 
the ground that the state of public sentiment in the North would not 
sustain it, in connection with the withdrawal of the troops from Fort 
Sumter, which had been determined on. “The evacuation of Sumter,” 
he said, “is as much as the Administration can bear.” 

Judge Campbell adds: “I concurred in the conclusion that the 
evacuation of Sumter involved responsibility, and stated that there 
could not be too much caution in the adoption of measures so as not 
to shock or to irritate the public sentiment, and that the evacuation 
of Sumter was sufficient for the present in that direction. I stated 
that I would see the Commissioners, and I would write to Mr. Davis 
to that effect. I asked him what I should say as to Sumter and as to 
Pickens. He authorized me to say that, before that letter could reach 
him (Mr. Davis), he would learn by telegraph that the order for the 


Fort Sumter, Evacuation of 


407 


evacuation of Sumter had been made. He said the condition of 
Pickens was satisfactory, and there would be no change made there.” 
Davis on The Rise and Fall of The Confederate Government, Vol. I, 
268-9. 

Judge Campbell tells us that Mr. Crawford was slow to consent to 
refrain from pressing the demand for recognition. “It was only after 
some discussion and the expression of some objections that he con¬ 
sented” to do so. This consent was the pledge that the fort would 
be evacuated in the course of a few days. Mr. Crawford required the 
pledge of Mr. Seward to be reduced to writing, with Judge Camp¬ 
bell’s personal assurance of its genuiueness and accuracy. This 
written statement was exhibited to Judge Nelson, before its delivery, 
and approved by him. The fact that the pledge had been given in 
his name and behalf -was communicated to Mr. Seward the same 
evening by letter. He was cognizant of, consenting to, and in great 
part the author of, the whole transaction. 

It will be observed that not only the commissioners in Wash¬ 
ington, but the Confederate Government at Montgomery also, were 
thus assured on the highest authority—that of the Secretary of State 
of the United States, the official organ of communication of the views 
and purposes of his Government—of the intention of that Government 
to order the evacuation of Fort Sumter within a few days from the 
15th of March, and not to disturb the existing status at Fort Pickens. 
Davis on The Rise and Fall of The Confederate Government, Vol. I, 
268. 

Of the result of these interviews, Judge Campbell states: “The last 
was full and satisfactory. The Secretary was buoyant and sanguine; 
he spoke of his ability to carry through his policy with confidence. 
He accounted for the delay as accidental, and not involving the in¬ 
tegrity of his assurance that the evacuation would take place, and 
that I should know whenever any change was made in the resolu¬ 
tion in reference to Sumter or to Pickens. I repeated this assur¬ 
ance in writing to Judge Crawford, and informed Governor Seward in 
writing what I had said." 

It would be incredible, but for the ample proofs which have 
since been brought to light, that, during all this period of reiterated 
assurances of a purpose to withdraw the garrison from Fort Sumter, 
and of excuses for delay on account of the difficulties which embar¬ 
rassed it, the Government of the United States was assiduously en¬ 
gaged in devising means for furnishing supplies and re-enforcements 
to the garrison, with the view of retaining possession of the fort! 
Davis on The Rise and Fall of The Confederate Government, Vol. I, 
270. 

Mr. Davis is of the opinion that the President, Mr. Lincoln, 
was aware of the artifice and deception practiced. He says: 

Mr. Seward, throughout the whole negotiation, was fully informed 
of the views of his colleagues in the Cabinet and of the President. 
Whatever his real hopes or purposes may have been in the beginning, 
it is positively certain that long before the end, and while still re- 


408 


Fort Sumter, Evacuation of 


iterating his assurances that the garrison would be withdrawn, he 
knew that it had been determined, and that active preparations were 
in progress, to strengthen it. 

Mr. Gideon Welles, who was Secretary of the Navy in Mr. Lincoln’s 
Cabinet, gives the following account of the transactions of that pe¬ 
riod: 

“One evening in the latter part of the month of March, there was 
a small gathering at the Executive Mansion, while the Sumter ques-- 
tion was still pending. The members of the Cabinet were soon in¬ 
dividually and quietly invited into the council-chamber, where, as 
soon as assembled, the President informed them he had just been 
advised by General Scott that it was expedient to evacuate Fort 
Pickens, as well as Fort Sumter, which last was assumed at military 
headquarters to be a determined fact, in conformity with the views 
of Secretary Seward and the General-in-Chief. . . . 

“A brief silence followed the announcement of the amazing recom¬ 
mendation of General Scott, when Mr. Blair, who had been much an¬ 
noyed by the vacillating course of the General-in-Chief in regard to 
Sumter, remarked, looking earnestly at Mr. Seward, that it was evi¬ 
dent that the old General was playing politician in regard to both 
Sumter and Pickens; for it was not possible, if there was a defense, 
for the rebels to take Pickens; and the Administration would not be 
justified if it listened to his advice and evacuated either. Very 
soon thereafter, I think at the next Cabinet meeting, the President 
announced his decision that supplies should he sent to Sumter, and 
issued confidential orders to that effect. All were gratified with his 
decision, except Mr. Seward, who still remonstrated, hut preparations 
were immediately commenced to fit out an expedition to forward 
supplies.^ Davis on the Rise and Fall of The Confederate Govern¬ 
ment, Vol. I, 277. 

Mr. Douglas, of Illinois—who was certainly not suspected of sym¬ 
pathy with secession, or lack of devotion to the Union—on the 15th 
of March offered a resolution recommending the withdrawal of the 
garrisons from all forts within the limits of the States which had 
seceded, except those at Key West and the Dry Tortugas. In support 
of this resolution he said: 

“We certainly can not justify the holding of forts there, much less 
the recapturing of those which have been taken, unless we intend 
to reduce those States themselves into subjection. I take it for 
granted, no man will deny the proposition, that whoever permanently 
holds Charleston and South Carolina is entitled to the possession of 
Fort Sumter. Whoever permanently holds Pensacola and Florida is 
entitled to the possession of Fort Pickens. Whoever holds the States 
in whose limits those forts are placed is entitled to the forts them¬ 
selves, unless there is something peculiar in the location of some par¬ 
ticular fort that makes it important for us to hold it for the gen¬ 
eral defense of the whole country, its commerce and interests, in¬ 
stead of being useful only for the defense of a particular city or lo¬ 
cality. It is true that Forts Taylor and Jefferson, at Key West and 
Tortugas, are so situated as to be essentially national, and therefore 
important to us without reference to our relations with the seceded 


Fort Sumter, Evacuation of 


409 


States. Not so with Moultrie, Johnson, Castle Pinckney, and Sumter, 
in Charleston Harbor; not so with Pulaski, on the Savannah River; 
not so with Morgan and other forts in Alabama; not so with those 
other forts that were intended to guard the entrance of a particular 
harbor for local defense. 

“We can not deny that there is a Southern Confederacy, de facto , 
in existence, with its capital at Montgomery. We may regret it. I 
regret it most profoundly; but I can not deny the truth of the fact, 
painful and mortifying as it is. . . .1 proclaim boldly the policy 

of these with whom I act. We are for peace.” 

Mr. Douglas, in urging the maintenance of peace as a motive for 
the evacuation of the forts, was no doubt aware of the full force of 
his words. He knew that their continual occupation was virtually a 
declaration of war. 

The General-in-Chief of the United States Army, also, it is well 
known, urgently advised the evacuation of the forts. But the most 
striking protest against the coercive measures finally adopted was 
that of Major Anderson himself. The letter in which his views were 
expressed has been carefully suppressed in the partisan narratives of 
that period and well nigh lost sight of, although it does the highest 
honor to his patriotism and integrity. It was written on the same 
day on which the announcement was made to Governor Pickens of 
the purpose of the United States Government to send supplies to the 
fort, and is worthy of reproduction here. Davis on The Rise and Fall 
of The Confederate Government , Vol. I, 282. 

Mr. Davis sets out the whole letter which shows that Major 
Anderson opposed attempting to hold the fort. The last clause 
of the letter is as follows: 

“We shall strive to do our duty, though I frankly say that my 
heart is not in this war, which I see is to be thus commenced. That 
God will still avert it, and cause us to resort to pacific means to 
maintain our rights, is my ardent prayer! 

“I am, Colonel, very respectfully, 

“Your obedient servant, 

“ROBERT ANDERSON, 
“Major 1st Artillery, Commanding.” 

Davis on The Rise and Fall of The Confederate Gov¬ 
ernment, Vol. I, 28If. 

The following courteous but awful potential letters followed: 

Headquarters Provisional Army, C. S. A., 
“Charleston, S. C., April 11, 1861, 2 P. M. 

“Sir: The Government of the Confederate States has hitherto fore- 
borne from any hostile demonstration against Fort Sumter, in the hope 
that the Government of the United States, with a view to the adjust¬ 
ment of all questions between the two Governments, and to avert the 
calamities of war, would voluntarily evacuate it. There was reason 
at one time to believe that such would be the course pursued by the 


410 


Fort Sumter, Evacuation of 


Government of the United States; and, under that impression my 
Government has refrained from making any demand for the surrender 
of the fort. 

“But the Confederate States can no longer delay assuming actual 
possession of a fortification commanding the entrance of one of their 
harbors, and necessary to its defense and security. 

“I am ordered by the Government of the Confederate States to de¬ 
mand the evacuation of Fort Sumter. My aides, Colonel Chestnut and 
Captain Lee, are authorized to make such demand of you. All proper 
facilities will be afforded for the removal of yourself and command, 
together with company arms and property, and all private property, 
to any post in the United States which you may elect. The flag which 
you have upheld so long and with so much fortitude, under the most 
trying circumstances, may be saluted by you on taking it down. 

“Colonel Chestnut and Captain Lee will, for a reasonable time, 
await your answer. 

“I am, sir, very respectfully, your obedient servant, 

“G. T. BEAUREGARD, 
“Brigadier-General, commanding. 

“MAJOR ROBERT ANDERSON, 

“Commanding at Fort Sumter, Charleston Harbor, S. C.” 

“Headquarters Fort Sumter, S. C., April 11, 1861. 

“General: I have the honor to acknowledge the receipt of your 
communication demanding the evacuation of this fort; and to say in 
reply thereto that it is a demand with which I regret that my sense 
of honor and of my obligations to my Government prevents my com¬ 
pliance. 

“Thanking you for the fair, manly, and courteous terms pro¬ 
posed, and for the high compliment paid me, 

“I am, General, very respectfully, your obedient servant, 

“ROBERT ANDERSON, 
“Major U. S. Army, commanding.” 

Davis on the Rise and Fall of the Confederate Gov¬ 
ernment, Vol. I, 286. 

Mr. Davis thus speaks of the bombardment: 

The bloodless bombardment and surrender of Fort Sumter oc¬ 
curred on April 13, 1861. The garrison was generously permitted to 
retire with the honors of war. The evacuation of that fort, com¬ 
manding the entrance to the harbor of Charleston, which, if in hos¬ 
tile hands, was destructive to its commerce, had been claimed as the 
right of South Carolina. The voluntary withdrawal of the garrison 
by the United States Government had been considered, and those best 
qualified to judge believed it had been promised. Yet, when instead 
of the fulfillment of just expectations, instead of the withdrawal of 
the garrison, a hostile expedition was organized and sent forward, 
the urgency of the case required its reduction before it should be re¬ 
enforced. Davis on The Rise and Fall of The Confederate Govern¬ 
ment, Vol. I. 297. 


Slavery, History of 


411 


History of Slavery 

Mr. Webster in his famous speech in the Senate of the 
United States in 1850, which speech is denominated “The 
Constitution and The Union/’ says this as to the origin of 
slavery: 

We all know, sir, that slavery has existed in the world from time 
immemorial. There was slavery in the earliest periods of history, 
among the Oriental nations. There was slavery among the Jews; the 
theocratic government of that people issued no injunction against it. 
There was slavery among the Greeks; and the ingenious philosophy 
of the Greeks found, or sought to find, a justification for it exactly 
upon the same grounds which have been assumed for such a justi¬ 
fication in this country; that is, a natural and original difference 
among the races of mankind, and the inferiority of the black or col¬ 
ored race to the white. The Greeks justified their system of slavery 
upon that idea, precisely. They held the African and some of the 
Asiatic tribes to be inferior to the white race; but they did not show, 
I think, by any close process of logic, that, if this were true, the more 
intelligent and the stronger had therefore a right to subjugate the 
weaker. 

The more manly philosophy and jurisprudence of the Romans 
placed the justification of slavery on entirely different grounds. The 
Roman jurist, from the first and down to the fall of the empire, ad¬ 
mitted that slavery was against the natural law, by which, as they 
maintained, all men, of whatsoever clime, color, or capacity, were 
equal; but they justified slavery, first, upon the ground and authority 
of the law of nations, arguing, and arguing truly, that at that day 
the conventional law of nations admitted that captives in war, whose 
lives, according to the notions of the times, were at the absolute dis¬ 
posal of the captors, might, in exchange for exemptions from death, 
be made slaves for life, and that such servitude might descend to 
their posterity. The jurists of Rome also maintained, that, by the 
civil law, there might be servitude or slavery, personal and heredi¬ 
tary; first, by the voluntary act of an individual, who might sell him¬ 
self into slavery; secondly, by his being reduced into a state of 
slavery by his creditors, in satisfaction of his debts; and, thirdly, 
by being placed in a state of servitude or slavery for crime. At the 
introduction of Christianity, the Roman world was full of slaves, and 
I suppose there is to be found no injunction against that relation be¬ 
tween man and man in the teachings of the Gospel of Jesus Christ or 
of any of his Apostles. The object of the instruction imparted to man¬ 
kind by the founder of Christianity was to touch the heart, purify 
the soul, and improve the lives of individual men. That object went 
directly to the first fountain of all the political and social relations 
of the human race, as well as of all true religious feelings, the in¬ 
dividual heart and mind of man. 5 Webster’s Works, (7th ed.), pp. 
329-330. 

Slavery does exist in the United States. It did exist in the States 
before the adoption of this Constitution, and at that time. Let us, 
therefore, consider for a moment what was the state of sentiment 


412 


Slavery, History of 


North and South, in regard to slavery, at the time this Constitution 
was adopted. A remarkable change has taken place since; but what 
did the wise and great men of all parts of the country think of slavery 
then? In what estimation di dthey hold it at the time when this 
Constitution was adopted? It will be found, sir, if we will carry our¬ 
selves by historical research back to that day, and ascertain men’s 
opinions by authentic records still existing among us, that there was 
then no diversity of opinion between the North and the South upon 
the subject of slavery. It will be found that both parts of the coun¬ 
try held it equally an evil, a moral and political evil. It will be 
found that, either at the North or at the South, there was not much, 
though there was some, invective against slavery as inhuman and 
cruel. The great ground of objection to it was political; that it 
weakened the social fabric; that, taking the place of free labor, so¬ 
ciety became less strong and labor less productive; and therefore we 
find from all the eminent men of the time the clearest expression of 
their opinion that slavery is an evil. They ascribed its existence 
here, not without truth, and not without some acerbity of temper and 
force of language, to the injurious policy of the mother country, who, 
to favor the navigator, had entailed these evils upon the Colonies. 
5 Webster's Works, (7th ed.J, p. 333. 

You observe, sir, that the term slave, or slavery, is not used in the 
Constitution. The Constitution does not require that “fugitive slaves” 
shall be delivered up. It requires that persons held to service in one 
State, and escaping into another, shall be delivered up. Mr. Madison 
opposed the introduction of the term slave, or slavery, into the Con¬ 
stitution; for he said that he did not wish to see it recognized by the 
Constitution of the United States that there could be property in 
men. 5 Webster's Works, (7th ed.), p. 33). 

In the excited times in which we live, there is found to exist a 
state of crimination and recrimination between the North and South. 
There are lists of grievances produced by each; and those grievances, 
real or supposed, alienate the minds of one portion of the country 
from the other, exasperate the feelings, and subdue the sense of fra¬ 
ternal affection, patriotic love, and mutual regard. I shall bestow a 
little attention, sir, upon these various grievances existing on the 
one side and on the other. I begin with complaints of the South. 
I will not answer, further than I have, the general statements of the 
honorable Senator from South Carolina, that the North has prospered 
at the expense of the South in consequence of the manner of ad¬ 
ministering this government, in the collecting of its revenues, and so 
forth. These are disputed topics, and I have no inclination to enter 
into them. But I will allude to other complaints of the South, and 
especially to one which has in my opinion just foundation; and that 
is, that there has been found at the North, among individuals and 
among legislators, a disinclination to perform fully their constitu¬ 
tional duties in regard to the return of persons bound to service who 
have escaped into the free States. In that respect the South, in my 
judgment, is right, and the North is wrong. 5 Webster's Works, (7th 
ed.J, pp. 353-). 


Slavery, History of 


413 


I repeat, therefore, sir, that here is a well-founded ground of com¬ 
plaint against the North, which ought to be removed, which it is now 
in the power of the different departments of this government to re-^ 
move; which calls for the enactment of proper laws authorizing the 
judicature of this government, in the several States to do all that is 
necessary for the recapture of fugitive slaves and for their restora¬ 
tion to those who claim them. Wherever I go, and whenever I speak 
on the subject,—and when I speak here I desire to speak to th© 
whole North,—I say that the South has been injured in this respect, 
and has a right to complain; and the North has been too careless of 
what I think the Constitution peremptorily and emphatically enjoins 
upon her as a duty 5 Webster's Works, (7th ed.), p. 351?. 

Indeed, in the colonial period no little repugnance had been mani¬ 
fested to the introduction of slaves; and though the people of the 
colonies were far from being blameless in the matter, the guilt of the 
slave trade rested principally upon the mother country, whose gov¬ 
ernment had authorized and protected it, and as a matter of state 
policy had refused its assent to the measures proposed by the col¬ 
onies to check it. Those measures were adopted with a view to the 
ultimate extinction of the institution; and the refusal to sanction 
them was among the grave complaints made against the royal gov¬ 
ernment which Mr. Jefferson 1 would have introduced into the indict¬ 
ment incorporated in the declaration of independence. Story on the 
Constitution, Vol. V, p. 660, § 1916. 


President Davis thus gives the origin of slavery in the 
United States: 


It is well known that, at the time of the adoption of the Federal 
Constitution, African servitude existed in all the States that were 
parties to that compact, unless with the single exception of Massa¬ 
chusetts, in which it had, perhaps, very recently ceased to exist. The 
slaves, however, were numerous in the Southern, and very few in the 
Northern, States. This diversity was occasioned by differences of 
climate, soil, and industrial interests—not in any degree by moral 
considerations, which at that period were not recognized as an element 
in the question. It was simply because negro labor was more profit¬ 
able in the South than in the North that the importation of negro 
slaves had been, and continued to be, chiefly directed to the Southern 
ports. For the same reason slavery was abolished by the States of 
the Northern section (though it existed in several of them for more 
than fifty years after the adoption of the Constitution), while the 
importation of slaves into the South continued to be carried on by 
Northern merchants and Northern ships, without interference in 
the traffic from any quarter, until it was prohibited by the spontaneous 
action of the Southern States themselves. 

Two petitions for the abolition of slavery and slave-trade were pre¬ 
sented February 11 and 12, 1790, to the very first Congress convened 


1 Mr. Jefferson wrote two counts into 
the first draft of the Declaration of 
Independence, charging King George 
and Parliament of instituting and per¬ 
petuating slavery in the Colonies. 


They were however both stricken from 
the draft before it was adopted, which 
constituted the chief change in the in¬ 
strument from the one Mr. Jefferson 
first drafted. 


414 


Slavery, History of 


under the Constitution. After full discussion in the House of Repre¬ 
sentatives, it was determined, with regard to the first-mentioned sub¬ 
ject, “that Congress have no authority to interfere in the emancipa¬ 
tion of slaves, or in the treatment of them within any of the States;” 
and, with regard to the other, that no authority existed to prohibit 
the migration or importation of such persons as the States might 
think proper to admit, “prior to the year 1808.” So distinct and final 
was the statement of the limitations of the authority of Congress con¬ 
sidered to be that, when a similar petition was presented two or three 
years afterward, the Clerk of the House was instructed to return it 
to the petitioner. 

In 1807, CTbngress, availing itself of the very earliest moment at 
which the constitutional restriction ceased to be operative, passed an 
act prohibiting the importation of slaves into any part of the United 
States from and after the first day of January, 1808. This act was 
passed with great unanimity. In the House of Representatives there 
were one hundred and thirteen (113) yeas to five (5) nays; and it is 
a significant fact, as showing the absence of any sectional division 
of sentiment at that period, that the five dissentients were divided as 
equally as possible between the two sections: two of them were from 
Northern and three from Southern States. Davis on The Rise and 
Fall of the Confederate Government, Vol. I, 5. 

Virginia, it is well known, in the year 1784, ceded to the United 
States—then united only by the original Articles of Confederation— 
her vast possessions of the Ohio, from which the great States of Ohio, 
Indiana, Michigan, Illinois, Wisconsin, and part of Minnesota, have 
since been formed. In 1787—before the adoption of the Federal Con¬ 
stitution—the celebrated “Ordinance” for the government of this 
Northwestern Territory was adopted by the Congress, with the full 
consent, and indeed at the express instance, of Virginia. This Ordi¬ 
nance included six definite “Articles of compact between the original 
States and the people and States in the said Territory,” which were 
to “forever remain unalterable unless by common consent.” The 
sixth of these articles ordains that “there shall be neither slavery nor 
involuntary servitude in the said Territory, otherwise than in the 
punishment of crimes whereof the party shall have been duly con¬ 
victed.” Davis on The Rise and Fall of the Confederate Government, 
Vol I, 7. 

Montesquieu says: 

Were I to vindicate our right to make slaves of the Negroes, these 
should be my arguments. 

The Europeans, having extirpated the Americans, were obliged to 
make slaves of the Africans, for clearing such vast tracts of land. 

Sugar would be too dear, if the plants which produce it were cul¬ 
tivated by any other than slaves. 

These creatures are all over black, and with such a flat nose, that 
they can scarcely be pitied. 

It is hardly to be believed that God, who is a wise being, should 
place a soul, especially a good soul, in such a black, ugly body. Mon¬ 
tesquieu's Works, Book XV, Chapter V. 


Slavery, Constitutional History of 


415 


There is another origin of the right of slavery, and even of the 
most cruel slavery which is to be seen among men. 

There are countries where the excess of heat enervates the body, 
and renders men so slothful and dispirited, that nothing but the fear 
of chastisement can oblige them to perform any laborious task of 
duty; slavery is there more reconcileable to reason; and the master 
being lazy, with respect to his sovereign, as his slave is, with regard 
to him, this adds a political to a civil slavery. 

Aristotle endeavors to prove, that there are natural slaves; but 
what he says is far from proving it. If there be any such, I believe 
they are those of whom I have been speaking. 

But, as all men are born equal, slavery must be accounted un¬ 
natural, though, in some countries, it be founded on natural reason; 
and a wide difference ought to be made betwixt such countries and 
those in which even natural reason rejects it, as in Europe, where it 
has been so happily abolished. 

Plutarch, in the life of Numa, says, that, in Saturn’s time, there 
was neither slave nor master. Christianity has restored that age in 
our climates. Montesquieu's Works, Book XV, Chapter VII. 

Constitutional History of Slavery 

Mr. Calhoun thus gives the history: 

The difference of opinion and feeling in reference to the relation 
between the two races disclosed itself in the Convention that framed 
the Constitution, and constituted one of the greatest difficulties in 
forming it. After many efforts, it was overcome by a compromise, 
which provided in the first place, that representatives and direct taxes 
shall be apportioned among the States according to their respective 
numbers; and that, in ascertaining the number of each, five slaves 
shall be estimated as three. In the next, that slaves escaping into 
States where slavery does not exist, shall not be discharged from servi¬ 
tude, but shall be delivered up on claim of the party to whom their 
labor or service is due. In the third place, that Congress shall not 
prohibit the importation of slaves before the year 1808; but a tax not 
exceeding ten dollars may be imposed on each imported. And finally, 
that no capitation or direct tax shall be laid, but in proportion to 
federal numbers; and that no amendment of the Constitution, prior 
to 1808, shall affect this provision, nor that relating to the importation 
of slaves. 

It was well understood at the time, that without them the Consti¬ 
tution would not have been adopted by the Southern States, and ot 
course that they constituted elements so essential to the system that 
it never would have existed without them. The Northern States, 
knowing all this, ratified the Constitution, thereby pledging their 
faith, in the most solemn manner, sacredly to observe them. 

The above views were almost in words confirmed and de¬ 
creed by the Supreme Court of the United States, the opinion 
being written by Justice Story, who was a citizen of Massa¬ 
chusetts, and not in sympathy with the slave-holding States. 
In the case of Prigg v. Pa., it is said: 


416 


Slavery, Constitutional History of 


“The full recognition of this right and title was indispensable to 
the security of this species of property, in all the slave-holding States, 
and, indeed, was so vital to the preservation of their interests and in. 
stitutions, that it cannot be doubted, that it constituted a fundamental 
artitcle without the adoption of which the Union would not have been 
formed. Its true design was to guard against the doctrines and prin¬ 
ciples prevalent in the non-slave-holding States, by preventing them 
from intermeddling with, or restricting, or abolishing the rights of 
the owners of slaves.” 

“The clause was therefore of the last importance to the safety and 
security of the Southern States, and could not be surrendered by them 
without endangering their whole property in slaves. The clause was 
accordingly adopted in the Constitution by the unanimous consent of 
the framers of it—a proof at once of its intrinsic and practical neces¬ 
sity.” 

“The clause manifestly contemplates the existence of a positive 
unqualified right on the part of the owner of the slave, which no State 
law or regulation can in any way regulate, control, qualify, or re¬ 
strain.” 

No trouble from this provision of the Constitution appears to have 
arisen until the year 1819, when the admission of Missouri into the 
Union was sought, and the question first became acute, whether it 
should be admitted as a slave-holding or non-slave-holding State. The 
difference was settled by an Act of Congress known as the Missouri 
Compromise Act, which admitted the State as a slave-holding State, 
but provided that all of the territory of the United States lying North 
of 36° 30' N. latitude, should be non-slave-holding territory, and that 
no State carved out of such territory could be admitted into the Union, 
except as a non-slave-holding State. This was at the time thought to 
forever settle the slave question, but it had the opposite effect. It 
proved to be the entering wedge, which was to split the Union in 
twain. It made a geographical division in the politics, and parties of 
the country, which as Mr. Jefferson and Mr. Madison had predicted, 
was inconsistent with a Republican form of government. A Repub¬ 
lic can stand a division into two political parties if they are not 
necessary to its healthy condition, but cannot exist peaceably as a 
whole, if the parties are divided by geographical lines. War and force 
is the necessary result, and in the end the weaker must yield to the 
force of the stronger; such was predicted by the two sages, Jefferson 
and Madison, and such was the sad result. The Compromise Act was 
declared unconstitutional by the Supreme Court of the United States 
in the opinion of the Dred Scott decision, but the majority of the 
people in the Northern States would not consent to be bound by 
the decision and many of the Northern States declined to abide 
by it, or even the construction placed on the Constitution by the Court, 
or even that placed on it by the leading Statesmen of the Northern 
States, including even Mr. Webster and Mr. Lincoln. The people of the 
Northern States, aided and encouraged by foreign capital, organized 
secret societies, whose objects and purposes were to entice, decoy, en¬ 
trap, inveigle, and seduce slaves to escape from their owners, and to 


Slavery, Constitutional History of 


417 


pass them secretly and rapidly, by means organized for the purpose, 
into Canada, where they will be beyond the reach of the provision. 
6 Calhoun’s Works, p . 296. 

About the year 1835, there arose a political party known as the 
Abolition party. Its chief object was to force emancipation on the 
South, by uniting with the North against slavery, and by this perver¬ 
sion of the constitution every possible means were resorted to to render 
the whole South and Southern people aliens and hateful to the North. 
To this end they established social and religious societies, established 
newspapers, employed lanterns and issued pictorial publications, and 
flooded Congress with petitions to abolish slavery. Their acts be¬ 
came so offensive and seditious to the government, that the President 
requested Congress to provide laws to punish and prevent their acts 
of sedition; but Congress failed to so provide. While the political piety 
was never strong enough to come into power, it did become strong 
enough to hold the balance of power, and hence made of the great 
leading parties, power to its doctrines and teachings, so far as they 
could without alienating the majority of their own followers. It, as a 
party, never professed to be willing to submit to the Constitutional or 
Statutory provisions as to slavery, it openly opposed both, and abso¬ 
lutely resisted the law by force. When the question of the admis¬ 
sion of Texas came up in the forties, the question again became acute 
in Congress, because it was thought that if Texas was admitted it 
would be admitted as a slave state, and tend to destroy the power of 
the non-slave States in Congress. The question was again fanned into 
flames when California and Oregon were admitted as non-slave States. 
This was followed by acts abolishing slavery in the district of Colum¬ 
bia, and in all territorial governments of the United States. To add 
fuel to the flames, Congress had and was continuing to pass protective 
tariff acts, which were also because of geographical conditions, ex¬ 
clusively for the benefit of the Northern States and their people, and 
a heavy tax burden on the Southern States and their people. Some of 
the Southern States refused to be bound by these laws, as did some 
of the Northern States and people refuse to abide by the Constitu¬ 
tion and Statutes as to slavery. The two things concurring to make 
a geographical division between the States, secession was inevitable, 
when the constitutional rights of the minority were wholly denied and 
disregarded by the majority. The result would have been the same 
if the Southern States had acquired the controlling majority. 

In 1839 Mr. Clay thus classified the opponents of slavery: 

There are three classes of persons opposed, or apparently opposed, 
to the continued existence of slavery in the United States. The first 
are those who, from sentiments of philanthropy and humanity, are 
conscientiously opposed to the existence of slavery, but who are no 
less opposed, at the same time, to any disturbance of the peace and 
tranquillity of the union, or the infringement of the powers of the 
states composing the confederacy. In this class may be comprehended 
that peaceful and exemplary society of “Friends,” one of whose 
established maxims is an abhorrence of war in all its forms, and the cul¬ 
tivation of peace and good will among mankind. The next class con- 


418 


Slavery, Constitutional History of 


sists of apparent abolitionists; that is, those who, having been per¬ 
suaded that the right of petition has been violated by Congress, co¬ 
operate with the abolitionists for the sole purpose of asserting and 
vindicating that right. And the third class are the real ultra-aboli¬ 
tionists, who are resolved to persevere in the pursuit of their object 
at all hazards, and without regard to any consequences, however ca¬ 
lamitous they may be. With them the rights of property are nothing; 
the deficiency of the powers of the general government is nothing; the 
acknowledged and incontestable powers of the states are nothing; civil 
war, a dissolution of the Union, and the overthrow of a government in 
which are concerned the fondest hopes of the civilized world, are noth¬ 
ing. A single idea has taken possession of their minds, and onward 
they pursue it, overlooking all barriers, reckless and regardless of all 
consequences. 1 Clay, pp. 198-9. 

Abolition should no longer be regarded as an imaginary danger. 
The abolitionists, let me suppose, succeed in their present aim of 
uniting the inhabitants of the free states, as one man, against the in¬ 
habitants of the slave states. Union on the one side will beget union 
on the other. And this process of reciprocal consolidation will be at¬ 
tended with all the violent prejudices, embittered passions, and im¬ 
placable animosities, which ever degraded or deformed human nature. 
A virtual dissolution of the Union will have taken place, while the 
forms of its existence remain. The most valuable element of union, 
mutual kindness, the feelings of sympathy, the fraternal bonds, which 
now happily unite us, will have been extinguished forever. One sec¬ 
tion will stand in menacing and hostile array against the other. The 
collision of opinion will be quickly followed by the clash of arms. 
1 Clay, p. 205. 

The inhabitants of the slave states are sometimes accused by their 
Northern brethren with displaying too much rashness and sensibility 
to the operations and proceedings of abolitionists. But before they 
can be rightly judged, there should be a reversal of conditions. Let 
me suppose that the people of the slave states were to form societies, 
subsidizing presses, make large pecuniary contributions, send forth 
numerous missionaries throughout all their own borders, and enter 
into machinations to burn the beautiful capitols, destroy the produc¬ 
tive manufactories, and sink in the ocean the gallant ships of the 
Northern States. Would these incendiary proceedings be regarded 
as neighborly and friendly, and consistent with the fraternal senti¬ 
ments which should ever be cherished by one portion of the Union 
towards another? Would they excite no emotion? occasion no mani¬ 
festations of dissatisfaction? nor lead to any acts of retaliatory vio¬ 
lence? But the supposed case falls far short of the actual one in 
most essential circumstances. In no contingency could these capi¬ 
tols, manufactories, and ships, rise in rebellion, and massacre in¬ 
habitants of the Northern States. 1 Clay, p. 206. 

Mr. Madison thus gives a history of the subject: 

As to the intention of the framers of the Constitution in the clause 
relating to “the migration and importation of persons,” etc., the best 
key may, perhaps, be found in the case which produced it. The Afri- 


Slavery, Constitutional History of 


419 


can trade in slaves had long been odious to most of the States, and 
the importation of slaves into them had been prohibited. Particular 
States, however, continued the importation, and were extremely averse 
to any restriction on their power to do so. In the convention, the 
former States were anxious in framing a new constitution, to insert 
a provision for an immediate and absolute stop to the trade. The 
latter were not only averse to any interference on the subject, but 
solemnly declared that their constituents would never accede to a 
Constitution containing such an article. Out of this conflict grew the 
middle measure, providing that Congress should not interfere until 
the year 1808; with an implication, that after that date they might 
prohibit the importation of slaves into the States then existing, and 
previous thereto, into the States not then existing. 3 Writings o/ 
Madison, pp. 149-150. 

But some of the States were not only anxious for a Constitutional 
provision against the introduction; they had scruples against admit¬ 
ting the term “slaves” into the instrument. Hence the descriptive 
phrase, “migration or importation of persons,” the term migration 
allowing those who were scrupulous of acknowledging expressly a 
property in human beings to view imported persons as a species of 
emigrants, while others might apply the term to foreign malefactors 
sent or coming into the country. It is possible, though not recol¬ 
lected, that some might have had an eye to the case of freed blacks 
as well as malefactors. 

But, whatever may have been intended by the term “migration,” 
or the term “persons,” it is most certain that they referred exclusively 
to a migration or importation from other countries into the United 
States, and not to a removal, voluntary or involuntary, of slaves or 
freemen from one to another part of the United States. 3 Writings 
of Madison, p. 150. 

Neither is there any indication that Congress have heretofore con¬ 
sidered themselves as deriving from this clause a power over the 
migration or removal of individuals, whether freemen or slaves, from 
one State to another, whether new or old. For it must be kept in 
view, that if the power was given at all, it has been in force eleven 
years over all the States existing in 1808, and at all times over the 
States not then existing. Every indication is against such a con¬ 
struction by Congress of their constitutional powers. Their alacrity 
in exercising their powers relating to slaves is a proof that they did 
not claim what they did not exercise. They punctually and unani¬ 
mously put in force the power accruing in 1808, against the farther 
importation of slaves from abroad. They had previously directed their 
power over American vessels on the high seas against the African 
trade. They lost no time in applying the prohibitory power to Lou¬ 
isiana, which having maritime ports, might be an inlet for slaves 
from abroad. But they forbore to extend the prohibition to the in¬ 
troduction of slaves from other parts of the Union. They had even 
prohibited the importation of slaves into the Mississippi Territory 


420 


Slavery, Constitutional History of 


from without the limits of the United States, in the year 1798, with¬ 
out extending the prohibition to the introduction of slaves from within 
those limits; although, at the time, the ports of Georgia and South 
Carolina were open for the importation of slaves from abroad, and 
increasing the mass of slavery within the United States. 3 Writings 
of Madison, pp. 151-152. 

As to the power of admitting new States into the federal compact, 
the questions offering themselves are: whether Congress can attach 
conditions, or the new States concur in conditions, which, after ad¬ 
mission, would abridge or enlarge the constitutional rights of legis¬ 
lation common to the other States; whether Congress can, by a com¬ 
pact with a new member, take power either to or from itself, or place 
the new member above or below the equal rank and rights possessed 
by the others; whether all such stipulations, expressed or implied, 
would not be nullities, and so pronounced when brought to a practical 
test. It falls within the scope of your inquiry to state the fact that 
there was a proposition in the convention to discriminate between 
the old and new States, by an article in the Constitution declaring 
that the aggregate number of representatives from the States there¬ 
after to be admitted should never exceed that of the States originally 
adopting the Constitution. The proposition, happily, was rejected. 
The effect of such a discrimination is sufficiently evident. 3 Writings 
of Madison, p. 153. 

Mr. Madison and Mr. Jefferson foresaw that the Missouri 
Compromise would tend to danger of disrupting the Union, 
by a geographical division of parties, and Madison said: 

Under one aspect of the general subject, I cannot avoid saying, that, 
apart from its merits under others, the tendency of what has passed 
and is passing fills me with no slight anxiety. Parties, under some 
denominations or other, must always be expected in a government as 
free as ours. When the individuals belonging to them are inter¬ 
mingled in every part of the whole country, they strengthen the union 
of the whole while they divide every part. Should a state of parties 
arise founded on geographical boundaries, and other physical and 
permanent distinctions which happen to coincide with them, what is 
to control those great repulsive masses from awful shocks against 
each other? 1 2 Writings of Madison, pp. 156-7. 

The following are the views of Mr. Webster as to the Con¬ 
stitutional provisions and acts of Congress as to fugitive 
slaves: 

This provision of the Constitution seems to have met with little ex¬ 
ception or opposition, or none at all, so far as I know, in Massa¬ 
chusetts. Everybody seems to have regarded it as necessary and 
proper. The members of the convention of that State for adopting the 

1 The prophecy of Jefferson and Mad- made a sectional as well as political 
ison came true. Slavery could not issue. Law proved to he the servant 
continue or he abolished, except by of sectional politics, 
force, when by written law, it was 


Slavery, Constitutional History of 


421 


Constitution were particularly jealous of every article and section 
which might in any degree intrench on personal liberty. Every page 
of their debates evinces this spirit. And yet I do not remember that 
any one of them found the least fault with this provision. 6 Webster's 
Works, (7th ed.J, p. 552. 

On the 12th of February, 1793, under the administration of General 
Washington, Congress passed an act for carrying into effect both these 
clauses of the Constitution. It is entitled, “An Act respecting fugi¬ 
tives from justice, and persons escaping from the service of their 
masters.” 6 Webster's Works, (7th ed.J, p. 553. 

It will be observed, that in neither of the two cases does the law 
provide for the trial of any question whatever by jury, in the State 
in which the arrest is made. The fugitive from justice is to be de¬ 
livered, on the production of an indictment, or a regular affidavit, 
charging the party with having committed the crime; and the fugi¬ 
tive from service is to be removed to the State from which he fled, 
upon proof, before any authorized magistrate, in the State where he 
may be found, either by witnesses or affidavit, that the person claimed 
doth owe service to the party claiming him, under the laws of the 
State from which he fled. In both cases, the proceeding is to be 
preliminary and summary; in both cases, the party is to be removed 
to the State from which he fled, that his liabilities, and his rights, 
may be there regularly tried and adjudged by the tribunals of that 
State, according to its laws. 6 Webster's Works, (7th ed.J, pp. 551^-5. 

I am not aware that there exists any published account of the de¬ 
bates on the passage of this act. I have been able to find none. I 
have searched the original files, however, and I find among the papers 
several propositions for modifications and amendments, of various 
kinds; but none suggesting the propriety of any jury trial in the 
State where the party should be arrested. 

For many years, little or no complaint was made against this 
law, nor was it supposed to be guilty of the offenses and enormities 
which have since been charged upon it. It was passed for the purpose 
of complying with a direct and solemn injunction of the Constitu¬ 
tion; it did no more than was believed to be necessary to accomplish 
that single purpose; and it did that in a cautious, mild manner, to be 
everywhere conducted according to judicial proceedings. 

I confess I see no more objection to the provisions of this law than 
was seen by Mr. Cabot and Mr. Strong, Mr. Goodhue and Mr. Gerry; 
and such provisions appear to me, as they appeared to them, to be 
absolutely necessary, if we mean to fulfill the duties positively and 
peremptorily enjoined upon us by the Constitution of the country. 
But since the agitation caused by Abolition societies and Abolition 
presses has to such an extent excited the public mind, these provisions 
have been rendered obnoxious and odious. Unwearied endeavors have 
been made, and but too successfully, to rouse the passions of the peo¬ 
ple against them; and under the cry of universal freedom, and under 
that other cry, that there is a rule for the government of public men 


422 


Slavery, Constitutional History of 


and private men which is of superior obligation to the Constitution 
of the country, several of the States have enacted laws to hinder, ob¬ 
struct, and defeat the enactments in this act of Congress, to the ut¬ 
most of their power. 1 6 Webster's Works, (7th ed.J, p. 556. 

The Constitution declares, that in all criminal prosecutions there 
shall be a trial by jury; the reclaiming of a fugitive slave is not a 
criminal prosecution. The Constitution also declares that in suits 
at common law the trial by jury shall be preserved; the reclaiming of 
a fugitive slave is not a suit at the common law. And there is no 
other clause or sentence in the Constitution having the least bearing 
on the subject. 6 Webster's Works, (7th ed.J, p. 558. 


Mr. Bryce in his work on the American Constitution, after 
stating that the Constitution, prior to the thirteenth amend¬ 
ment, not only authorized but protected slavery, says on this 
subject: 


Stripped of legal technicalities, the dispute resolved itself into 
the problem often purposed but capable of no general solution: When 
is a majority entitled to use force for the sake of retaining a minority 
in the same political body with itself? To this question, when it ap¬ 
pears in a concrete shape, as to the similar question when an insur¬ 
rection is justifiable, an answer can seldom be given beforehand. The 
result decides. When treason prospers, none dare call it treason. 

The Constitution, which had rendered many services to the Ameri¬ 
can people, did them an inevitable dis-service when it fixed their 
minds on the legal aspects of the question. Law was meant to be the 
servant of politics, and not be suffered to become the master. A case 
had arisen which its formulae were unfit to deal with, a case which 
had to be settled on large moral and historical grounds. It was not 
merely the superior physical force of the North that prevailed; it was 
the moral forces which rule the world, forces which had long worked 
against slavery, and were ordained to save North America from the 
course of hostile nations established side by side. Bryce's American 
Commonwealth, Vol. I, J^IO. 

In the uncertainty as to where legal right resided, it would have 
been prudent to consider where physical force resided. The South, 
however, thought herself able to resist any physical force which the 
rest of the nation might bring against her. Thus encouraged, she took 


1 Public opinion changed on this sub¬ 
ject. The majority of the masses in 
the Northern. Eastern and Western 
States were not willing to obey the 
Constitution nor to follow the teaching 
of their great leaders such as Story, 
Shaw, Webster, Lincoln and others. 
They resolved to resist the enforcement 
of the Constitution and statutes on the 
subject. The Constitution and Fed¬ 
eral statutes on the subject, though 
held valid and binding by the greatest 
courts, judges and statesmen in the 
world, were denounced in the public 
assemblies, and even in pulpits, by the 
greatest divines, as a league with hoil, 
and a compact with the devil. Sec¬ 
tional feeling was intense. The North¬ 


ern press was subsidized, millions of 
people rebelled against the constitu¬ 
tional provisions as to slavery; some 
states nullified acts of Congress, and 
resisted the enforcement of Federal 
laws on the subject of slavery. A 
great part of the Northern people and 
some of the Northern States were in 
a state of rebellion against the Fed¬ 
eral Government and its laws, as 
much so as ever was the Southern 
States. Had this element failed in 
getting control of the Federal Govern¬ 
ment, there can be but little doubt, 
but many of the Northern States 
would have seceded as did the South¬ 
ern States when the abolitionists 
gained control. 


Slavery, Constitutional History of 


423 


her stand on the doctrine of States Rights; and then followed a 
pouring out of blood and treasure such as was never spent on de¬ 
termining a point of law before, not even when Edward III, and his 
successors waged war for a hundred years to establish the claim of 
females to inherit the crown of France. 

What, then, do the rights of a State now include? Every right or 
power of a Government except: 

The right of secession (not abrogated in terms, but admitted since 
the war to be no longer claimable. It is expressly negatived in the 
recent Constitutions of several of the Southern States.) 

Powers which the Constitution withholds from the States (includ¬ 
ing that of intercourse with foreign government). 

Powers which the Constitution expressly confers on the Federal 
Government. 

As respects some powers of the last class, however, the States may 
act concurrently with, or in default of action by, the Federal Govern¬ 
ment. It is only from contravention of its action that they must 
abstain. Bryce's American Commonwealth, Yol. I, J^ll. 

The institution of African slavery as it existed in about half the 
States of the Union, and the contests pervading the public mind for 
many years between those who desired its curtailment and ultimate 
extinction and those who desired additional safeguards for its se¬ 
curity and perpetuation, culminated in the effort on the part of most 
of the States in which slavery existed to separate from the Federal 
government and to resist its authority. This constituted the war of 
the rebellion; and whatever auxiliary causes may have contributed to 
bring about the war, undoubtedly the overshadowing and efficient 
cause was African slavery. 

In that struggle, slavery, as a legalized social relation, perished. 
It perished as a necessity of the bitterness and force of the conflict. 
Story on the Constitution, Yol. V, p. 7 24, Appendix. 

The author of the above note is hardly justified in his con¬ 
clusion that the Southern States ever desired additional safe¬ 
guards for the perpetuation of slavery or its security. They 
only asked that the Constitutional provisions and the exist¬ 
ing statutes on the subject be observed and enforced by the 
States and Federal governments. One of the Southern States 
did resist the enforcement of a Federal statute as to a pro¬ 
tective tariff, but no one of them ever did resist any Federal 
law as to slavery. It was the Northern States which resisted 
and refused to obey or enforce the Federal laws, Constitution 
and statutes as to slavery. 

The Constitution inhibited Congress from prohibiting the 
importation of slaves into the States until the year 1808; by 
act of Congress March 2, 1807, the importation was prohibited, 
on and after June 1st, 1808, but this prohibition extended only 


124 Slavery, Constitutional History of 

to importation from foreign countries, and not from one State 
to another. Slavery was never legally prohibited in the slave 
states until the 13th Amendment was adopted. 

This act of 1807 was passed by Congress during Mr. Jeffer¬ 
son’s administration and was approved by him, and his entire 
Cabinet; and was advised and passed at the earliest possible 
time which the Constitution would allow. It was then people 
and companies in Europe and the Eastern States that were en¬ 
gaged in the importation of slaves, and not the Southern 
States, nor the people thereof. 

The Constitution prior to the Thirteenth Amendment, un¬ 
questionably secured the Southern States against the aboli¬ 
tion of slavery, and expressly provided for the return of fugi¬ 
tive slaves to their owners. It also prevented Congress from 
imposing discriminating taxes against slaves. Many of the 
Northern States were averse to the Constitution on this ac¬ 
count. Many of the leading citizens of the Northern States 
were not willing to be so bound or for the States to be so 
bound by the Constitution. They openly advocated disre¬ 
garding the Constitution on this subject. The Constitutional 
provisions provoked the famous speech of Wendell Philips, in 
which he declared “The Constitution is a compact with hell. 
God damn the Constitution of the United States.” These were 
the sentiments of a large portion of the citizens of the North¬ 
ern States; they were known as Abolitionists, and while as a 
party they were never successful, yet by uniting and fusing 
themselves with any party that opposed any measure that 
looked favorably towards slavery, they ultimately succeeded 
in forcing the Southern States to secede. If the Southern 
States had not divided among themselves as to candidates in 
1860, and had succeeded in electing a President, and a ma¬ 
jority of Congress in 1860, it is very probable that some of 
the Northern States would have seceded. It was perfectly 
evident that secession would follow this election. 

Mr. Foster, a Northern Author, thus speaks of the subject 
and conditions: 

The election by the Northern States, for President, of a Northern 
man who had said that the Union could not “endure permanently half 
slave, half free/' and who had publicly declared his refusal to ac¬ 
quiesce in the opinion in the Dred Scott Case, that slavery could not 
be constitutionally excluded from the Territories, convinced the South 
that new safeguards were necessary for the preservation of their pe¬ 
culiar institution. Renewed threats of a dissolution of the Union were 


Slavery, Constitutional History of 


425 


received in such a manner by the North as to make it clear that a ma¬ 
jority of the people were resolved to submit to no further aggressions 
by the slave power. Foster on the Constitution, Vol. I, p. 163. 

Alexander H. Stephens, the Vice-President of the Confed¬ 
eracy, in his Constitutional View of the War between the 
States, vol. ii, p. 321, says: 

The truth is, in my judgment, the wavering scale in Georgia was 
turned by a sentiment, the key-note to which was given in the words, 
“We can make better terms out of the Union than in it.” It was Mr. 
Thomas R. R. Cobb, who gave utterance to this key-note, in his speech 
before the Legislature two days before my address before the same 
body. This one idea did more, in my opinion, in carrying the State 
out, than all the arguments and eloquence of all the others combined. 
Two-thirds, at least, of those who voted for the Ordinance of Seces¬ 
sion, did so, I have but little doubt, with a view to a more certain Re¬ 
formation of the Union. 

And again speaking of Lincoln’s proclamation, calling for 
troops (ibid., p. 356) : 

“The effect of this upon the public mind of the Southern States 
cannot be described or even estimated. The shock was not unlike 
that produced by great convulsions of nature. . . . the upheavings 
and rockings of the earth itself! It was not that of fright. Far from 
it! But a profound feeling of wonder and astonishment! Up to this 
time, a majority, I think, of even those who had favored the policy 
of secession, had done so under the belief and conviction that it was 
the surest way of securing a redress of grievances, and of bringing the 
Federal Government back to constitutional principles. Many of them 
indulged hopes that a Re-formation, or a Re-construction of the Union 
w r ould soon take place on the basis of the new Montgomery Constitu¬ 
tion, and that the Union, under this, would be continued and strength¬ 
ened or made more perfect, as it had been in 1789, after the with¬ 
drawal of nine States from the first Union, and the adoption of the 
Constitution of 1787. This proclamation dispelled all such hopes.” 
He says again that when South Carolina attacked Fort Sumter, Lin¬ 
coln should have called a Congress of the States which had not se¬ 
ceded, to consult them upon his action in the matter. Foster on the 
Constitution, Vol. I, (note), p. 170. 

Stephens gives the following testimony concerning the attitude 
of Jefferson Davis: “I never saw a word from him recommending 
secession as the proper remedy against threatening danger until he 
joined in the general letter of the Southern Senators and Repre¬ 
sentatives in Congress to their States advising them to take that 
course. This was in December, 1860, and not until after it was as¬ 
certained in the Committee of the Senate, on Mr. Crittenden’s propo¬ 
sition for quieting the apprehensions and alarm of the Southern 
States, from the accession of Mr. Lincoln to power, that the Republi¬ 
cans, his supporters, would not agree to that measure. It is well 
known that both he and Mr. Toombs declared their willingness 
to accept the adoption of Mr. Crittenden’s measure as a final settle- 


426 


Slavery, Constitutional History of 


ment of the controversy between the States and sections, if the party 
coming into power would agree to it in the same spirit and with the 
same assurance.” (Ibid., vol. i., pp. 416, 417.) See also Douglas’ 
speech in the Senate, Jan. 3d. 1861, stating the position of Toombs 
and Davis at that time. (Cong. Globe, 2d Sess., 36th Congress, ap¬ 
pendix, p. 441): Report by H. P. Bell, commissioner of Georgia to 
Tennessee (Journal of Georgia Convention, p. 368); article by J. D. 
Cox in Atlantic Monthly for 1892, p. 390; infra, note 56. Foster on 
the Constitution, Vol. I, (note) p. 171. 

Note —Here was the grievous mistake of Mr. Lincoln and the North¬ 
ern States. A convention of the States or the people thereof would 
have resulted in amending the Constitution to meet public opinion on 
the questions which divided the states. 

Mr. Foster thus describes the beginning of secession and the 
war: 

Lincoln’s inaugural was conciliatory in its tone. He expressed wil¬ 
lingness to approve a constitutional amendment making it forever 
impossible for the Federal government to interfere with slavery within 
a State without its consent. He further suggested that a convention 
of the States was the best method of preparing amendments to the 
Constitution. He repudiated the right of secession; and announced 
his determination to maintain the laws of the United States. It was 
well known that there was a division in his cabinet as to the right 
and expediency of defending the places owned by the Federal govern¬ 
ment in the seceded States; and it was the belief of the commission¬ 
ers sent by the Confederate government to negotiate upon this point, 
that Seward had promised that Fort Sumter would be surrendered. 
Many of the leaders of the Republicans in the North, amongst them 
Horace Greeley, advised that the seceding States be permitted to de¬ 
part in peace. The South still believed that when she showed she 
was in earnest, the North would yield; and that even if Lincoln 
wished to resist, he was powerless to act under existing laws. On 
April 12th, the militia of South Carolina, under the command of a 
Confederate general, fired upon Fort Sumter, which was held by a 
small company of the army of the United States, in Charleston harbor, 
without provisions to endure a seige, and within range of guns from 
the shore. After a short resistance to save his honor, Major Ander¬ 
son two days later surrendered the fort. But the victory was indeed 
like one by Pyrrhus. The North roused by this blow, rose to the de¬ 
fense of the flag. On the 15th Lincoln called for seventy-five thousand 
troops to defend the Union and the governors of all the free States 
at once responded. The North had received the call and refused to 
lay down her cards. The South had too much pride to recede. Her 
leaders had raised a storm which it was now too late to cease; and 
they were carried along by the tide. Foster on the Constitution, Vol. 
I, pp. 177-178. 

In 1833, Mr. Webster’s opinion was asked as to the power of 
the States and Congress to control slavery, and in part he re¬ 
plied as follows: 


Wilmot Proviso As To Slavery 


427 


My sentiments on this subject, my dear sir, have been often pub¬ 
licly expressed; but I have no objection to repeat the declaration of 
them, if it be thought by you that such a declaration might, in the 
smallest degree, aid the friends of the Union and the Constitution, 
in the South, in dispelling prejudices which are so industriously fos¬ 
tered, and in quieting agitations so unnecessarily kept alive. 

In my opinion, the domestic slavery of the Southern States is a 
subject within the exclusive control of the States themselves; and 
this, I am sure, is the opinion of the whole North. 1 Congress has no 
authority to interfere in the emancipation of slaves, or in the treat¬ 
ment of them in any of the States. This was so resolved in the House 
of Representatives, when Congress sat in this city in 1790, on the re¬ 
port of a committee consisting almost entirely of Northern members; 
and I do not know an instance of the expression of a different opinion, 
in either house of Congress, since. 6 Webster's Works , (7th ed.J, p. 536. 

Mr. Blaine thus speaks of the Constitutional Provision as 
to slavery: 

The compromises on the slavery question, inserted in the Consti¬ 
tution, were among the essential conditions upon which the Federal 
Government was organized. If the African slave-trade had not been 
permitted to continue for twenty years, if, it had not been conceded 
that three-fifths of the slaves should be counted in the apportionment 
of representation in Congress, if it had not been agreed that fugitives 
from service should be returned to their owners, the thirteen States 
would not have been able in 1787 to form a more perfect union. 
Blaine's Twenty Years in Congress , p. 1. 


Wilmot Proviso 

The Wilmot Proviso, 2 was offered by Mr. Wilmot of Pennsylvania: 
declaring it to be “an express and fundamental condition to the ac¬ 
quisition of any territory from Mexico, that neither slavery nor in¬ 
voluntary servitude shall ever exist therein.” Blaine's Twenty Years 
in Congress, p. 67. 

Note —This proviso was clearly not authorized by the Constitution. 
Congress had no such power as it proposed to exercise. It was void 
for the same reason as was the Missouri Compromise Statute, declared 
void in the Bred Scott Division. The powers attempted to be asserted 
in these acts were reserved to the states and the Federal Government 
required to guarantee them to the states. 


English Sanction of Slavery 


In 1840, Mr. Calhoun said in the Senate: 

’ * 

The whole of Hindustan, with the adjacent possessions, is one mag¬ 
nificent plantation, peopled by more than one hundred million of 


‘Mr. Webster no doubt spoke what 
he believed and it was the belief and 
feelings of the leading statesmen and 
jurists of the North at that time, and 
probably at his death ; but it was not 
the feelings or belief of the masses 


of the people of the Northern States 
in 1861 . 

2 This proviso provided much debate 
in Congress and was a political issue. 
It was a renewal and extension of the 
Missouri compromise. 


428 Slavery, England and Europe's Action as to 

slaves, belonging to a company of gentlemen in England, called the 
East India Company, whose power is far more unlimited and despotic 
than that of any Southern planter over his slaves—a power upheld 
by the sword and bayonet, exacting more and leaving less by far of 
the product of their labor to the subject race, than is left under our 
own system, with much less regard to their comfort in sickness and 
age. 3 Calhoun's Works, p. Jfl8. 

Notwithstanding this fact, England or some of her leading 
statesmen and pliilanthrophists, encouraged and promoted 
abolition societies in the United States and sought to dismem¬ 
ber the union by driving a wedge between the Northern and 
Southern States, and even by taking a hand in wars between 
Mexico and Texas and the United States. See Mr. Calhoun’s 
works and Presidential papers during his terms as Secretary 
of War. 

European Action as to Slavery 

In 1843, there was started a world-wide movement to abolish 
slavery in America. The following is taken from a note to 
the 5th vol. of Calhoun’s Works: 

“In June, 1843, the'World’s Convention, as it was called, 
a body which obtained an infamous notoriety at the time, as 
well on account of the material of which it was composed, as 
of its mad and mischievous schemes, assembled in London. 
One of its principal objects, perhaps the only one which in¬ 
terested the American, or (to speak more properly) the New 
England delegation, was to urge on the British Government 
the importance of securing the abolition of slavery in Texas, 
as the most effectual means of involving their own country in 
a civil and servile war; and, finally, of dissolving the Union. 
To this end, they waited in a body on Lord Aberdeen, the 
principal Secretary of State of Foreign Affairs, and proposed 
that the British Government should either make a loan, based 
on the security of the public lands of Texas, or at least guar¬ 
antee the payment of interest on such a loan, to be devoted 
exclusively to the abolition of slavery within its limits.” 

Abolitionists ’ Activities 

In 1836, Abolition petitions were being circulated through the 
mails, which tended to create insurrections among the States, and 
sedition among the people, and the president sent a message to Con¬ 
gress advising efficient measures to prevent the circulation of such 
incendiary petition. A select committee reported to Congress, as fol¬ 
lows, on the subject: 

“The message, as has been stated, recommends that Congress 
should pass a law to punish the transmision, through the mail, of 
incendiary publications intended to instigate the slaves to insurrec- 


Slavery, England and Europe's Action as to 429 

tion. It of course assumes for Congress a right to determine what 
papers are incendiary and intended to excite insurrection. The 
question, then is,—has Congress such a right? A question of vital 
importance to the slave-holding States, as will appear in the course 
of the discussion. 

“After examining this question with due deliberation, in all its 
bearings, the committee are of opinion, not only that Congress has 
not the right, but that to admit it would be fatal to the States.” 5 
Calhoun's Works, p. 106. 

He who regards slavery in those States simply under the relation 
of master and slaves, as important as that relation is,—viewed merely 
as a question of property to the slave-holding section of the Union,— 
has a very imperfect conception of the institution, and the impossi¬ 
bility of abolishing it without disasters unexampled in the history 
of the world. To understand its nature and importance fully, it must 
be borne in mind that slavery, as it exists in the Southern States (in¬ 
cluding under the Southern all the slave-holding States), involves not 
only the relation of master and slave, but also the social and political 
relations of two races, of nearly equal numbers, from different quar¬ 
ters of the globe, and the most opposite of all others in every par¬ 
ticular that distinguishes one race of men from another. Emancipa¬ 
tion would destroy these relations—would divest the masters of their 
property, and subvert the relation, social and political, that has ex¬ 
isted between the races from almost the first settlement of the South¬ 
ern States. 5 Calhoun's Works, p. 203. 

It is against this relation between the two races that the blind and 
criminal zeal of the Abolitionists is directed—a relation that now pre¬ 
serves in quiet and security more than 6,500,000 human beings, and 
which can not be destroyed without destroying the peace and pros¬ 
perity of nearly half the States of the Union, and involving their entire 
population in a deadly conflict, that must terminate either in the ex¬ 
pulsion or extirpation of those who are the object of the misguided 
and false humanity of those who claim to be their friends. 

He must be blind, indeed, who does not perceive that the subversion 
of a relation which must be followed with such disastrous conse¬ 
quences, can only be effected by convulsions that would devastate the 
country, burst asunder the bonds of the Union, and ingulf, in a sea of 
blood, the institutions of the country. It is madness to suppose that 
the slave-holding States would quietly submit to be sacrificed. Every 
consideration—interest, duty, and humanity—the love of country—the 
sense of wrong, hatred of oppressors, and treacherous and faithless 
confederates—and, finally, despair—would impel them to the most 
daring and desperate resistance in defence of property, family, coun¬ 
try, liberty, and existence. 

But wicked and cruel as is the end aimed at, it is fully equalled by 
the criminality of the means by which it is proposed to be accom¬ 
plished. These, as has been stated, consist in organized societies and 
a powerful press, directed mainly with a view to excite the bitterest 
animosity and hatred of the people of the non-slave-holding States 
against the citizens and institutions of the slave-holding States. It is 
easy to see to what disastrous results such means must tend. Passing 


430 


Slavery, England and Europe's Action as to 


over the more obvious effects, their tendency to excite to insurrection 
and servile war, with all its horrors, and the necessity which such 
tendency must impose on the slave-holding State to resort to the most 
rigid discipline and severe police, to the great injury of the present 
condition of the slaves, there remains another, threatening incalcu¬ 
lable mischief to the country. 5 Calhoun's Works, pp. 205-6. 


In 1844, Great Britain undertook to abolish slavery in Texas, 
and to prevent her admission into the Union, except on condi¬ 
tion that she enter as a non-slave State. In consequence of 
this a rather warm controversy arose between the United 
States and Great Britain, conducted on the one side by Mr. 
Calhoun, as Secretary of State, and Mr. Packinghame, Envoy 
Extraordinary, and Minister Plenipotentiary of Her Britannic 
Majesty. See 5 Calhoun’s Works, p. 333. 


In one of these letters, Mr. Calhoun says: 

“So long as Great Britain confined her policy to the abolition of 
slavery in her own possessions and colonies, no other country had a 
right to complain. It belonged to her exclusively to determine, ac¬ 
cording to her own views of policy, whether it should be done or not. 
But when she goes beyond, and avows it as her settled policy, and 
the object of her constant exertions, to abolish it throughout the 
world, she makes it the duty of all other countries, whose safety or 
prosperity may be endangered by her policy, to adopt such measures 
as they may deem necessary for their protection. 

“It is with still deeper concern the President regards the avowal 
of Lord Aberdeen of the desire of Great Britain to see slavery abol¬ 
ished in Texas 1 , and, as he infers, is endeavoring, through her diplo¬ 
macy, to accomplish it, by making the abolition of slavery one of the 
condition on which Mexico should acknowledge her independence. 
5 Calhoun's Works, pp. 333-33^. 

In 1821, Mr. Madison wrote to Gen. LaFayette as follows on 
the subject: 

The negro slavery, is, as you justly complain, a sad blot on our 
free country, though a very ungracious subject of reproaches from the 
quarter which has been most lavish of them. 2 No satisfaxtory plan 


1 Some other American statesmen 
have thought as did Mr. Calhoun, that 
this interference of England with the 
institution of slavery was not wholly 
philanthropic, that she thought she 
could drive this issue as a wedge be¬ 
tween the Northern and Southern 
States, and thus weaken one of her 
most formidable competitors for su¬ 
premacy of wealth and commerce with 
other American governments. 

2 There is no doubt that slavery was 
morally wrong and contrary to the 
laws of nature and teachings of phi¬ 
lanthropy. Yet there was another 
phase of the question in the Southern 
States which the world, and especially 
the abolitionists and the partisan pol¬ 


iticians of the Northern States wholly 
ignored—that of social equality for the 
negroes with the whites. This was 
morally wrong, and contrary to the 
laws of nature. Here was a social and 
political status, that the abolition of 
slavery would produce that abolition¬ 
ists ignored. The South was no more 
responsible for slavery in the United 
States than was the North and East. 
To have freed all slaves without chang¬ 
ing the Constitution so as to make 
them citizens, would have wrecked and 
ruined the Southern States, and all 
the people thereof, white and black. 
There was involved not only property 
rights, but the political, social and 
moral relations of the two races re¬ 
quired a change in the Constitution. 


War Between the States, Causes of 


431 


has yet been devised for taking out the stain. If an asylum could be 
found in Africa, that would be the appropriate destination for the 
unhappy race among us. Some are sanguine that the efforts of an 
existing Colonization Society will accomplish such a provision; but a 
very partial success seems the most that’can be expected. Some other 
region must, therefore, be found for them as they become free and 
willing to emigrate. The repugnance of the whites to their contin¬ 
uance among them is founded on prejudices, themselves founded on 
physical distinctions, which are not likely soon, if ever, to be eradi¬ 
cated. Even in States, Massachusetts for example, which displayed 
most sympathy with the people of colour on the Missouri question, 
prohibitions are taking place against their becoming residents. They 
are everywhere regarded as a nuisance, and must really be such as 
long as they are under the degradation which public sentiment inflicts 
on them. They are at the same time rapidly increasing from manu¬ 
missions and from offsprings, and of course lessening the general dis¬ 
proportion between the slaves and the whites. This tendency is favor¬ 
able to the cause of a universal emancipation. 4 Writings of Madison, 
pp. 239-240. 

Causes of the War Between the States 

Mr. Davis, the President of the Confederate States, and 
therefore the Commander-in-Chief of the Confederate Army- 
in the war between the States, thus states his reasons as to the 
cause of the war between the States. He contended that slav¬ 
ery was an incident, but not the cause of war: 

Ignorance and credulity have enabled unscrupulous partisans so 
to mislead public opinion, both at home and abroad, as to create the 
belief that the institution of African slavery was the chief cause, in¬ 
stead of being a mere incident in the group of causes, which led to the 
war. In keeping with the first misrepresentation was that of the po¬ 
sition assigned to the belligerent parties. Thus, the North is repre¬ 
sented as having fought for the emancipation of the African slaves, 
and the South for the increase and extension of the institution of 
African servitude as it existed in the Southern States. Therein is a 
twofold fallacy. First, the dominant party at the North, in 1861, 
through their exponent, President Lincoln, declared, in his inaugural 
message, as follows: 

“I have no purpose, directly or indirectly, to interfere with the 
institution of slavery in the States where it exists. I believe I have 
no lawful right to do so; and I have no inclination to do so.” 

This declaration was reinforced by quoting from the platform of 
the political convention which nominated him, an emphatic resolu¬ 
tion, in these words: 

“ Resolved , That the maintenance inviolate of the rights of the 
States, and especially the right of each State to order and control its 
own domestic institutions according to its own judgment exclusively, 
is essential to that balance of power on which the perfection and en¬ 
durance of our political fabric depends; and we denounce the lawless 
invasion, by armed force, of the soil of any State or Territory, no 
matter under what pretext, as among the gravest of crimes.” 


432 


Slavery, Madison’s Views as to 


When Mr. Lincoln endorsed that resolution and incorporated it in 
his inaugural the effect was like a rift in the cloud while the storm 
and darkness were gathering, and the words closely following were 
the more cheering because of the prevalent belief in his rugged hon¬ 
esty. Pity that the confidence should have been impaired by sub¬ 
sequent passages in his address, and that the past and passing acts 
and avowals of his party gave no reasonable expectation that he would 
be able to execute his declared policy. 

Federation had so generally proved a failure that the world had 
become distrustful of it; but its success in the United States had re¬ 
vived the hopes of those who saw in it the best mode of securing com¬ 
munity welfare and happiness. It was therefore most proper to de¬ 
nounce as among the gravest of crimes the armed invasion of any 
State; for their conquest would be the extinguishment of the beacon 
which was illuminating the world by the rays of federal liberty. 

If additional evidence be needed to prove that “emancipation” was 
not an original purpose, it may be found not only in the inaugural, 
but also in the fact that President Lincoln subsequently defended the 
issuance of his emancipation proclamation, in 1863, on the ground of 
“military necessity.” 

The existence of African servitude gave rise to acrimonious politi¬ 
cal discussions long before the secession of the Southern States in 
1861; and owing to the persistent misrepresentations and a general 
misunderstanding of the true nature and character of the questions 
growing out of the institution, the misconceptions that have been en¬ 
gendered not in our own country only, but, still more, abroad, have 
tended and still tend to mislead the judgment of the world in arriv¬ 
ing at a correct apprehension of the causes of the war between the 
States and of the controversies that preceded it. Davis on the History 
of the Confederate States, p. 13. 

Madison’s Views of Emancipation 

A general emancipation of slaves ought to be: 1. Gradual. 2. 
Equitable, and satisfactory to the individuals immediately concerned. 
3. Consistent with the existing and durable prejudice of the nation. 

That it ought, like remedies for other deep-rooted and widespread 
evils, to be gradual, is so obvious, that there seems to be no difference 
of opinion on that point. 

To be equitable and satisfactory, the consent of both the master 
and the slave should be obtained. That of the master will require a 
provision in the plan for compensating a loss of what he held as 
property, guaranteed by the laws, and recognized by the Constitution. 
That of the slave, requires that his condition in a state of freedom 
be preferable, in his estimation, to his actual one in a state of bond¬ 
age. 3 Writings of Madison, pp. 133-134. 

Supposing the number of slaves to be 1,500,000, and their price 
to average 400 dollars, the cost of the whole would be 600 millions of 
dollars. These estimates are probably beyond the fact; and from the 
number of slaves should be deducted: 1. Those whom their masters 
would not part with. 2. Those who may be gratuitously set free by 
their masters. 3. Those acquiring freedom under emancipating regu¬ 
lations of the States. 4. Those preferring slavery where they are to 


Slavery, States 9 Rights to Control 


433 


freedom in an African settlement. On the other hand, it is to be 
noted that the expense of removal and settlement is not included in 
the estimated sum; and that an increase of the slaves will be going 
on during the period required for the execution of the plan. 

On the whole, the aggregate sum needed may be stated at about 
six hundred millions of dollars. 1 3 Writings of Madison, p. 136. 


States’ Rights as to Slavery 

The following is from a report of Mr. Webster’s speech in 
Richmond, Virginia, in 1840: 

I hold that Congress is absolutely precluded from interfering in 
any manner, direct or indirect, with this, as with any other of the 
institutions of the State. [The cheering was here loud and long con¬ 
tinued, and a voice from the crowd exclaimed, “We wish this could 
,be heard from Maryland to Louisiana, and we desire that the senti¬ 
ment just expressed may be repeated. Repeat! Repeat!”] Well, I 
repeat it; proclaim it on the wings of all the winds, tell it to all your 
friends,—[cries of “We will! We will!”]—tell it, I say, that, standing 
here in the Capitol of Virginia, beneath an October sun, in the midst 
of this assemblage, before the entire country, and upon all the re¬ 
sponsibility which belongs to me, I say that there is no power, di¬ 
rect or indirect, in Congress or the general government, to interfere 
in the slightest degree with the institutions ot the South. 

And now, fellow-citizens, I ask you only to do me one favor. I 
ask you to carry that paper home; read it; read it to your neigh¬ 
bors; and when you hear the cry, “Shall Mr. Webster, the Aboli¬ 
tionist, be allowed to profane the soil of Virginia?” then you will 
tell them that, in connection with the doctrine in that speech, I hold 
that there are two governments over us, each possessing its own dis¬ 
tinct authority, with which the other may not interfere. I may differ 
from you in some things, but I will here say that, as to the doctrines 
of State rights, as held by Mr. Madison in his last days, I do not 
know that we differ at all. 2 Webster's Works, (7th ed.), p. 94. 


In 1851, Mr. Webster, in a speech to the yonng men of Al¬ 
bany, New York, said: 

Some fifteen years ago, when some of the States, the free States, 
thought it proper to pass laws prohibiting their own magistrates and 
officers from executing this law of Congress, under heavy penalties, 
and refusing to the United States authorities the use of their prisons 
for the detention of persons arrested as fugitive slaves, that is to 
say, these States passed acts defeating the law of Congress, as far as 
it was in their power to defeat it, those of them to which I refer 
not all, but several, nullified the law of 1793 entirely. They said, in 
effect, “We will not execute it. No runaway slave shall be restored.” 


J These facts and figures were given 
in 1820. 

Mr. Jefferson and Washington had 
hoped that abolition of slavery would 
eventually come through peaceable 
emancipation. Jefferson and Madison 
believed and so stated each to the 


other and publicly, that hut for the 
Missouri Compromise, that made the 
question a sectional one, that emanci¬ 
pation would eventually have come 
peaceably. It was not to them a com¬ 
promise ; but “the ringing of fire-hells 
at night.” 


434 


Slavery, States’ Rights to Control 


Thus the law became a dead letter, an entire dead letter. But here 
was the constitutional compact, nevertheless, still binding; here was 
the stipulation, as solemn as words could form it, and which every 
member of Congress, every officer of the general government, every 
officer of the State governments, from governors down to constables, 
is sworn to support. 2 Webster's Works, (7th ed.), p. 575. 

In speaking of the fugitive slave law of 1850, Mr. Webster 
said: 

All judicial opinions are in favor of this law. You cannot find a 
man in the profession in New York, whose income reaches thirty 
pounds a year, who will stake his professional reputation on an opin¬ 
ion against it. If he does, his reputation is not worth the thirty 
pounds. And yet this law is opposed, violently opposed, not by bring¬ 
ing this question into court; these lovers of human liberty, these 
friends of the slave, the fugitive slave, do not put their hands in their 
pockets, and draw funds to conduct lawsuits, and try the question; 
they are not much in that habit. That is not the way they show 
their devotion to liberty of any kind. But they meet and pass reso¬ 
lutions; they resolve that the law is oppressive, unjust, and should 
not be executed at any rate, or under any circumstances. 2 Webster's 
Works, (7th ed.), p. 577. 

In a speech at Buffalo, New York, in 1851, Mr. Webster thus 
declares the meaning of this provision of the Constitution: 

There is no man who can read these words of the Constitution of 
the United States, and say they are no‘t clear and imperative. “No 
person,” the Constitution says, “held to service or labor in one State, 
under the laws thereof, escaping into another, shall, in consequence 
of any law or regulation therein, be discharged from such service or 
labor, but shall be delivered up on claim of the party to whom such 
service or labor may be done.” Why, you may be told by forty con¬ 
ventions in Massachusetts, in Ohio, in New York, or elsewhere, that, 
if a colored man comes here, he comes as a freeman; that is a non 
sequitur. It is not so. If he comes as a fugitive from labor, the Con¬ 
stitution says he'is not a freeman, and that he shall be delivered up 
to those who are entitled to his service. 2 Webster's Works, (7th ed.), 
p. 55. 

Under the provisions of the Constitution, during Washington’s ad¬ 
ministration, in the year 1793, there was passed, by general consent, 
a law for the restoration of fugitive slaves. Hardly any one opposed 
it at that period; it was thought to be necessary, in order to carry 
the Constitution into effect; the great men of New England and New 
York all concurred in it. It passed, and answered all the purposes 
expected from it, till about the year 1841 or 1842, when the States 
interfered to make enactments in opposition to it. The act of Con¬ 
gress said that State magistrates might execute the duties of the law. 
Some of the States passed enactments imposing a penalty on any 
State officers who exercised authority under the law, or assisted in 
its execution; others deny the use of their jails to carry the law into 
effect, and, in general, at the commencement of the year 1850, it had 


Slavery, States’ Rights to Control 


435 


become absolutely indispensable that Congress should pass some law 
for the execution of this provision of the Constitution, or else give 
up that provision entirely. 2 Webster's Works, (7th ed.), p. 558. 

Such is the present law; and, much opposed and maligned as it is, 
it is more favorable to the fugitive slave than the law enacted during 
Washington’s administration, in 1793, which was sanctioned by the 
North as well as by the South. The present violent opposition has 
sprung up in modern times. From whom does this clamor come? 
Why, look at the proceedings of the anti-slavery conventions; look 
at their resolutions. Do you find among those persons who oppose 
this Fugitive Slave Law any admission whatever, that any law ought to 
be passed to carry into effect the solemn stipulations of the Constitu¬ 
tion? Tell me any such case; tell me if any resolution was adopted 
by the convention at Syracuse favorable to the carrying out of the 
Constitution? Not one! The fact is, Gentlemen, they oppose 
the constitutional provision; they oppose the whole! Not a man of 
them admits that there ought to be any law on the subject. They 
deny, altogether, that the provisions of the Constitution ought to be 
carried into effect. Look at the proceedings of the anti-slavery con¬ 
vention in Ohio, Massachusetts, and at Syracuse, in the State of New 
York. What do they say? “That, so help them God, no colored man 
shall be sent from the State of New York back to his master in Vir¬ 
ginia.” 2 Webster's Works, (7th ed.), p. 559. 

Gentlemen, I expect to be libelled and abused. Yes, libelled and 
abused. But it does not disturb me. I have not lost a night’s rest for 
a great many years from any cause. I have some talent for sleeping. 
And why should I not expect to be libelled? Is not the Constitution 
of the United States libelled and abused? Do not some people call 
it a covenant with hell? Is not Washington libelled and abused? Is 
he not called a bloodhound on the track of the African negro? Are 
not our fathers libelled and abused by their own children? And un¬ 
grateful children they are. How, then, shall I escape? I do not ex¬ 
pect to escape; but, knowing these things, I impute no bad motive 
to any men of character and fair standing. The great settlement 
measures of the last Congress are laws. 2 Webster's Works, (7th ed.), 
p. 561. 

In the 30s and 40s Mr. Calhoun in the Senate said: 

We have arrived at a new and important point in reference to the 
abolition question. It is no longer in the hands of quiet and peace¬ 
ful, but I cannot add, harmless Quakers. It is now under the control 
of ferocious zealots, blinded by fanaticism, and, in pursuit of their 
object, regardless of the obligations of religion or morality. They 
are organized throughout every section of the non-slave-holding 
States; they have the disposition of almost unlimited funds, and are 
in possession of a powerful press, which, for the first time, is enlisted 
in the cause of abolition, and turned against the domestic institutions, 
and the peace and security of the South. To guard against the danger 
in this new and more menacing form, the slave-holding States will be 
compelled to revise their laws against the introduction and circula- 


436 


Slavery, How It Led to Secession 


tion of publications calculated to disturb their peace and endanger 
their security, and to render them far more full and efficient than 
they have heretofore been. 2 Calhoun's Works, pp. 530-531. 

How Slavery Led to Secession 

In the Senate of the United States in 1847, Mr. Calhoun 
said: 

Mr. President, it was solemnly asserted on this floor some time 
ago, that all parties in the non-slave-holding States had come to a 
fixed and solemn determination upon two propositions. One was, 
that there should be no further admission of any States into this 
Union which permitted, by their constitutions, the existence of slav¬ 
ery; and the other was,—that slavery shall not hereafter exist in 
any of the territories of the United States; the effect of which would 
be to give to the non-slave-holding States the monopoly of the public 
domain, to the entire exclusion of the slave-holding States. Since that 
declaration was made, we have had abundant proof that there was a 
satisfactory foundation for it. We have received already solemn reso- 
lutions passed by seven of the non-slave-holding States—one-half of 
the number already in the Union, Iowa not being counted—using the 
strongest possible language to that effect; and no doubt, in a short 
space of time, similar resolutions will be received from all of the 
non-slaveholding States. But we need not go beyond the walls of 
Congress. The subject has been agitated in the other House, and 
they have sent up a bill “prohibiting the extension of slavery” (using 
their own language) “to any territory which may be acquired by the 
United States hereafter.” 4 Calhoun's Works, p. 3^0. 

We, Mr. President, have at present only one position in the Gov¬ 
ernment, by which we may make any resistance to this aggressive 
policy, which has been declared against the South; or any other that 
the non-slave-holding States may choose to adopt. And this equality in 
this body is one of the most transient character. Already Iowa is 
a State; but owing to some domestic difficulties, is not yet repre¬ 
sented in this body. When she appears here, there will be an addi¬ 
tion of two Senators to the representatives here of the non-slave-hold- 
ing States. Already Wisconsin has passed the initiatory state, and 

will be here at the next session. This will add two more, making a 

clear majority of four in this body on the side of the non-slave-holding 
States, who will thus be enabled to sway every branch of this Gov¬ 
ernment at their will and pleasure. But, if this aggressive policy be 

followed—if the determination of the non-slave-holding States is to 
be adhered to hereafter, and we are to be entirely excluded from the 
territories which we already possess, or may possess—if this is to be 
the fixed policy of the Government, I ask what will be our situation 
hereafter? 4 Calhoun's Works, pp. 3^1-2. 

Sir, can we find any hope by looking to the past? If we are to 
look to that—I will not go into the details—we will see, from the 
beginning of this Government to the present day, as far as pecuniary 
resources are concerned—as far as the disbursement of revenue is 
involved, it will be found that we have been a portion of the com- 


Slavery—John Broivn’s Raid 


437 


munity which has substantially supported this Government without 
receiving anything like a proportionate return. 4 Calhoun's Works, 
p. 343. 

Now, I ask, is there any remedy? Does the Constitution afford 
any remedy? And if not, is there any hope? These, Mr. President, 
are solemn questions—not only to us, but, let me say to gentlemen 
from the non-slave-holding States, to them. Sir, the day that the bal¬ 
ance between the two sections of the country—the slave-holding 
States and the non-slave-holding States—is destroyed, is a day that 
will not be far removed from political revolution, anarchy, civil war, 
and wide-spread disaster. The balance of this sytem is in the slave¬ 
holding States. They are the conservative portion—always have been 
the conservative portion—always will be the conservative portion; 
and with a due balance on their part may, for generations to come, 
uphold this glorious Union of ours. But if this scheme should be 
carried out—if we are to be reduced to a handful—if we are to become 
a mere ball to play the presidential game with—to count something 
in the Baltimore caucus—if this is to be the result—wo! wo! I say, 
to this Union. 4 Calhoun's Works, pp. 343-4. 

I see my way in the constitution; I cannot in a compromise. A 
compromise is but an act of Congress. It may be overruled at any 
time. It gives us no security. But the constitution is stable. It is 
a rock. On it we can stand, and on it we can meet our friends from 
the non-slave-holding States. It is a firm and stable ground, on which 
we can better stand in opposition to fanaticism, than on the shifting 
sands of compromise. 

Let us be done with compromise. Let us go back and stand upon 
the constitution. 4 Calhoun's Works, p. 347. 

I am a planter—a cotton-planter. I am a Southern man and a 
slaveholder—a kind and a merciful one, I trust—and none the worse 
for being a slaveholder. I say, for one, I would, rather meet any ex¬ 
tremity upon earth than give up one inch of our equality—one inch 
of what belongs to us as members of this great republic! What! 
acknowledge inferiority! The surrender of life is nothing to sink 
down into acknowledged inferiority! 

I 'have examined this subject largely—widely. I think I see the 
future. If we do not stand up as we ought, in my humble opinion, 
the condition of Ireland is prosperous and happy—the condition of 
Hindustan is prosperous and happy—the condition of Jamaica is pros¬ 
perous and happy, compared with what must be that of the Southern 
States. 4 Calhoun's Works, p. 348. 

John Brown’s Raid 

The raid into Virginia under John Brown—then notorious as a 
fanatical partisan leader in the Kansas troubles—occurred in Octo¬ 
ber, 1859, a few weeks before the meeting of the Thirty-sixth Con¬ 
gress. Insignificant in itself and in its immediate results, it af- 


438 


Davis Resolutions 


forded a startling revelation of the extent to which sectional hatred 
and political fanaticism had blinded the conscience of a class of per¬ 
sons in certain States of the Union; forming a party steadily growing 
stronger in numbers, as well as in activity. Sympathy with its pur¬ 
poses or methods was earnestly disclaimed by the representatives of 
all parties in Congress; but it was charged, on the other hand, that it 
was only the natural outgrowth of doctrines and sentiments which 
for some years had been freely avowed on the floors of both Houses. 
A committee of the Senate made a long and laborious investigation of 
facts, with no very important or satisfactory results. In their final 
report, June 15, 1860, accompanying the evidence obtained and sub¬ 
mitted, this Committee said: 

It (the insurrection) was simply the act of lawless ruffians, under the 
sanction of no public or political authority, distinguishable only from 
ordinary felonies by the ulterior ends in contemplation by them, and 
by the fact that the money to maintain the expedition, and the large 
armament they brought with them, has been contributed and fur¬ 
nished by the citizens of other States of the Union under circum¬ 
stances that must continue to jeopardize the safety and peace of the 
Southern States, and against which Congress has no power to legis¬ 
late. Davis on The Rise and Fall of the Confederate Government, 41 . 

On February 2 , 1860, Mr. Davis, then a Senator from the 
State of Mississippi, introduced in the Senate seven resolu¬ 
tions, which were adopted on May 24 and 25 of that year. 
The first and last of these resolutions were as follows: 

“1. Resolved, That, in the adoption of the Federal Constitution, 
the States, adopting the same, acted severally as free and independ¬ 
ent sovereigns, delegating a portion of their powers to be exercised by 
the Federal Government for the increased security of each against dan¬ 
gers, domestic as well as froeign; and that any intermeddling by any 
one or more States, or by a combination of their citizens, with the 
domestic institutions of the others, on any pretext whatever, political, 
moral, or religious, with the view to their disturbance or subversion, 
is in violation of the Constitution, insulting to the States so inter¬ 
fered with, endangers their domestic peace, and tranquillity—objects 
for which the Constitution was formed—and, by necessary conse¬ 
quence, tends to weaken and destroy the Union-itself.” 

“7. Resolved, That the provision of the Constitution for the ren¬ 
dition of fugitives from service or labor, ‘without the adoption of 
which the Union could not have been formed,’ and that the laws of 
1793 and 1850, which were enacted to secure its execution, and the 
main features of which, being similar, bear the impress of nearly 
seventy years of sanction by the highest judicial authority, should 
be honestly and faithfully observed and maintained by all who enjoy 
the benefits of our compact of union; and that all acts of individuals 
or of State Legislatures to defeat the purpose or nullify the require¬ 
ments of that provision, and the laws made in pursuance of it, are 
hostile in character, subversive of the Constitution, and revolutionary 
in their effect.” 


Slavery, The Missouri Compromise as to 439 

The Missouri Compromise 

The following is from Story on the Constitution: 

In the year 1819, however, there sprung up suddenly and unexpect¬ 
edly a violent and acrimonious conflict, which for a time threatened 
the peace of the country, and shook the confidence of many strong 
minds in the perpetuity of the Union. The occasion for this contro¬ 
versy was the proposal to admit to the Union the new State of Mis¬ 
souri, formed from the territory acquired from France in 1803, under 
the name of Louisiana. 

“Like a fire-bell in the night,” was the striking comparison of 
Mr. Jefferson. Letter to Holmes, Jefferson’s Works, VII, 159. It will 
he seen from the correspondence between Mr. John Adams and Mr. 
Jefferson that both of them had gloomy forebodings of sectional diffi¬ 
culties and possible disunion from this controversy. Indeed, disunion 
was openly threatened on the floor of Congress during the debates. 

The State of Missouri made her constitution sanctioning slavery 
and forbidding the legislature to interfere with it. This prohibition, 
not usual in State constitutions, was the effect of the Missouri con¬ 
troversy and of foreign interference, and was adopted for the sake 
of peace, for the sake of internal tranquillity, and to prevent the agi¬ 
tation of the slave question, which could only be accomplished by 
excluding it wholly from the forum of elections and legislation. Ben¬ 
ton’s Thirty Years’ View, I. 8. Story on the Constitution, Vol. V, p. 
664, (note.) 

In 1840, and again in 1844, a distinctive anti-«lavery party had its 
presidential candidates in the field, and the votes drawn away from 
the other candidates in the election last mentioned affected sensibly, 
and as many thought conclusively, the general result. 

The compromises of the Constitution were ofttimes disregarded and 
contemned, church organizations were broken asunder, and patriotic 
statesmen, who looked upon the strengthening and perpetuation of the 
Union as the chief hope and only sure guaranty of our liberties, be¬ 
gan to anticipate the future with mingled feelings of doubt, distrust, 
and alarm. 

Mr. Lincoln’s remarks, in a speech at Springfield, Ill., June 17, 
1858, were equally pointed: “A house divided against itself cannot 
stand! I believe this government cannot endure permanently half 
slave and half free. I do not expect the union to be dissolved; I do 
not expect the house to fall; but I do expect it will cease to be divided. 
It will become all one thing or all the other. Either the opponents 
of slavery will arrest the further spread of it, and place it where the 
public mind shall rest in the belief that it is in the course of ultimate 
extinction, or its advocates will push it forward till it shall become 
alike lawful in all the States, old as well as new, North as well as 
South.” Similar views were frequently expressed by Southern states¬ 
men. See Mr. H. S. Foote’s statement of the fact in his War of the 
Rebellion, p. 18. Story on the Constitution, Vol. V, p. 667, (note). 

In 1860, the candidate of the anti-slavery party for President was. 
chosen by a considerable plurality, and this success being regarded on 
the part of leaders of public opinion, in the Southern States, as evi-- 


440 Slavery, The Missouri Compromise as to 

dence of a fixed determination in the opposite section of the Union to 
intermeddle with Southern institutions in an unconstitutional man¬ 
ner, they refused to accept any explanation or any assurance to the 
contrary, but took immediate steps for the disruption of the Union. 
Claiming a right in the several States to withdraw at will from the 
confederacy they had formed, they proceeded in the assertion of that 
right, and declared their unalterable determination, in case it should 
be contested, to submit it to the arbitrament of force. Thus slavery 
became the immediate occasion of the civil war, though the assumed 
right of secession had no necessary connection with slavery, and might 
have been asserted on any other ground or occasion with the same 
plausibility. Story's Const., Vol. V, p. 668, note. 

Mr. Calhoun says of this measure: 

In the session of 1819-1820, a question arose that exposed the 
patent danger. The admission of the territory of Missouri, as a 
State of the Union, was resisted on the ground that its constitution 
did not prohibit slavery. The contest, after a long and angry dis¬ 
cussion, was finally adjusted by a compromise, which admitted her as 
a slave-holding State, on condition that slavery should be prohibited 
in all the territories belonging then to the United States, lying north 
of 36° 30’. This compromise was acquiesced in by the people of the 
South; and the danger, apparently, and, as every one supposed, per¬ 
manently removed. Experience, however, has proved how erroneous 
were their calculations. The disease lay deep. It touched a fanati¬ 
cal as well as a political chord. There were not a few in the northern 
portion of the Union, who believed that slavery was a sin, as well as 
a great political evil; and who remained quiet in reference to it, only 
because they believed that it was beyond their control;—and that 
they were in no way responsible for it. So long as the government 
was regarded as a federal government with limited powers, this be¬ 
lief of the sinfulness of slavery remained in a dormant state,—as it 
still does in reference to the institution in foreign countries; but 
when it was openly proclaimed, as it was by the passage of the act 
of 1833, that the government had the right to judge, in the last re¬ 
sort of the extent of its powers; and to use the military and naval 
forces of the Union to carry its decision into execution; and when its 
passage by the joint votes of both parties furnished a practical as¬ 
sertion of the right claimed in an outrageous case, the chord was 
touched which roused it into action. The effects were soon made 
visible. In two years thereafter, in 1835, a systematic movement was, 
for the first time, commenced to agitate the question of abolition, by 
flooding the Southern States with documents calculated to produce 
discontent among the slaves;—and Congress, with petitions to abolish 
slavery in the District of Columbia. 1 Calhoun's Works, pp. 372-373. 

The effect of this was, to induce both parties to seek the votes of 
every faction or combination by whose aid they might hope to suc¬ 
ceed;—flattering them in return, with the prospect of establishing 
the doctrines they professed, or of accomplishing the objects they 
desired. This state of things could not fail to give importance to 
any fanatical party, however small, which cared more for the object 
that united them, than for the success of either party; especially if 


Slavery, The Missouri Compromise as to 441 

it should be of a character to accord, in the abstract, with the feeling 
of that portion of the community generally. Each of the great par¬ 
ties, in order to secure their support, would, in turn, endeavor to 
conciliate them, by professing a great respect for them, and a dis¬ 
position to aid in accomplishing the objects they wished to effect. 
1 Calhoun's Works, p. 374. 

This question was thus spoken of, and its results dreaded by 
Jefferson and Adams, among their last letters each to the 
other, the question was thus discussed. 

Jefferson to Adams: 

The banks, bankrupt law, manufactures, Spanish treaty, are noth¬ 
ing. They are occurrences which, like waves in a storm, will pass 
under the ship. But the Missouri question is a breaker on which we 
lose the Missouri country by revolt, and what more, God only knows. 
From the battle of Bunker’s Hill to the treaty of Paris, we never had 
so ominous a question. It even damps the joy with which I hear of 
your high health, and welcomes to me the consequences of my want 
of it. I thank God that I shall not live to witness its issue. 15 Jef¬ 
ferson's Writings, (Mem. ed.), pp. 232-3. 

Adams to Jefferson: 

The Missouri question, I hope, will follow the other waves under 
the ship, and do no harm. I know it is high treason to express a 
doubt of the perpetual duration of our vast American empire, and 
our free-institutions; and I say as devoutly as father Paul, estor per- 
petua, but I am sometimes Cassandra enough to dream that another 
Hamilton, and another Burr, might rend this mighty fabric in twain, 
or perhaps into a leash; and a few more choice spirits of the same 
stamp, might produce as many nations in North America as there 
are in Europe. 15 Jefferson's Writings, (Mem. ed.), pp. 236-7. 

In a letter to Hugh Nelson a few months later, Jefferson 
said: 

I thank you, dear sir, for the information in your favor of the 4th 
instant, of the settlement for the present, of the Missouri question. 
I am so completely withdrawn from all attention to public matters, 
that nothing less could arouse me than the definition of a geograph¬ 
ical line, which on an abstract principle is to become the line of 
separation of these States, and to render desperate the hope that 
man can ever enjoy the two blessings of peace and self-government. 
The question sleeps for the present, but is not dead. 15 Jefferson's 
Writings, (Mem. ed.), p. 238. 

A month later he wrote to Mark Langdon Hill: 

I congratulate you on the sleep of the Missouri question. I wish 
I could say on its death, but of this I despair. The idea of a geo¬ 
graphical line once suggested will brood in the minds of all those 
who prefer the gratification of their ungovernable passions to the 
peace and union of their country. 15 Jefferson's Writings, (Mem. ed.). 
p. 243. 


442 Slavery, The Missouri Compromise as to 

A little later he wrote to William Short: 

The old schism of federal and republic threatened nothing, be¬ 
cause it existed in every State, and united them together by the fra- 
ternism of party. But the coincidence of a marked principle, moral 
and political, with a geographical line, once conceived, I feared would 
never more be obliterated from the mind; that it would be recurring 
on every occasion and renewing irritations, until it would kindle such 
mutual and mortal hatred, as to render separation preferable to 
eternal discord. I have been among the most sanguine in believing 
that our Union would be of long duration. I now doubt it much, and 
see the event at no great distance, and the direct consequence of this 
question. 15 Jefferson's Writings, (Mem. ed.), p. 247. 

A little later he wrote to John Holmes: 

I had for a long time ceased to read newspapers, or pay any at¬ 
tention to public affairs, confident they were in good hands, and con¬ 
tent to be a passenger in our bark to the shore from which I am not 
distant. But this momentous question, like a fire-bell in the night, 
awakened and filled me with terror. I considered it at once as the 
knell of the Union. It is hushed, indeed, for the moment. But this 
is a reprieve only, not a final sentence. A geographical line, coincid¬ 
ing with a marked principle, moral and political, once conceived and 
held up to the angry passions of men, will never be obliterated; and 
every new irritation will mark it deeper and deeper. I can say, with 
conscious truth, that there is not a man on earth who would sacrifice 
more than I would to relieve us from this heavy reproach, in any 
practicable way. The cession of that kind of property, for so it is 
misnamed, is a bagatelle which would not cost me a second thought, 
if, in that way, a general emancipation and expatriation could be ef¬ 
fected; and, gradually, and with due sacrifices, I think it might be. 
But as it is, we have the wolf by the ears, and we can neither hold 
him, nor safely let him go. Justice is in one scale, and self-pres¬ 
ervation in the other. 15 Jefferson's Writings, (Mem. ed.), p. 249. 

I regret that I am now to die in the belief, that the useless sacri¬ 
fice of themselves by the generation of 1776, to acquire self-govern¬ 
ment and happiness to their country, is to be thrown away by the un¬ 
wise and unworthy passions of their sons, and that my only con¬ 
solation is to be, that I live not to weep over it. If they would but 
dispassionately weigh the blessings they will throw away, against an 
abstract principle more likely to be effected by union than by scis¬ 
sion, they would pause before they would perpetrate this act of sui¬ 
cide on themselves, and of treason against the hopes of the world. To 
yourself, as the faithful advocate of the Union, I tender the offering 
of my high esteem and respect. 15 Jefferson's Writings, (Mem. ed.), 
p. 250. 

In 1820 lie wrote to Mr. Pinckney: 

The Missouri question is a mere party trick. The leaders of 
federalism, defeated in their schemes of obtaining power by rallying 
partisans to the principle of monarchism, a principle of personal, 
not of local division, have changed their tack, and thrown out another 


Slavery, The Missouri Compromise as to 443 

barrel to the whale. They are taking advantage of the virtuous feel¬ 
ings of the people to effect a division of parties by a geographical 
line; they expect that this will ensure them, on local principles, the 
majority they could never obtaip on principles of federalism; but 
they are still putting their shoulder to the wrong wheel; they are 
wasting Jeremiads on the miseries of slavery, as if we were advocates 
for it. 15 Jefferson's Writings, (Mem. ed.), p. 280. 

In 1820, Mr. Jefferson, in writing to LaFayette, spoke of the 
question in the United States as follows: 

The boisterous sea of liberty indeed is never without a wave, and 
that from Missouri is now rolling towards us, but we shall ride over 
it as we have all others. It is not a moral question, but one merely 
of power. Its object is to raise a geographical principle for the choice 
of a President, and the noise will be kept up till that is effected. All 
know that permitting the slave of the South to spread into the West 
will not add one being to that unfortunate condition, that it will in¬ 
crease the happiness of those existing, and by spreading them over 
a larger surface, will dilute the evil everywhere, and facilitate the 
means of getting finally rid of it, an event more anxiously wished by 
those on whom it presses than by the noisy pretenders to exclusive 
humanity. In the meantime, it is a ladder for rivals climbing to 
power. 15 Jefferson's Writings, (Mem. ed.), pp. 300-801. 

Mr. Jefferson was certainly prophetic as to the objects and 
consequences of the Missouri Compromise. His philosophy 
was that if the people were left free they would eventually 
settle the questions peaceably; but if it was by written law 
made a sectional and geographical question, this would in¬ 
crease and aggravate the sectional issue already intense on 
account of the tariff question, and that as most all the slaves 
were in the Southern States, it would therefore lead to a set 7 
tlement by force, and a separation of the States into two 
groups. 

In 1821, Mr. Jefferson wrote Mr. Adams on the subject as 
follows: 

Our anxieties in this quarter are all concentrated in the question, 
what does the Holy Alliance in and out of Congress mean to do with 
us on the Missouri question? And this, by-the-bye, is but the name of 
the case, it is only the John Doe or Richard Roe of the ejectment. 
The real question, as seen in the States afflicted with this unfortunate 
population, is, are our slaves to be presented with freedom and a dag¬ 
ger? For if Congress has the power to regulate the conditions of the 
inhabitants of the States, within the States, it will be but another ex¬ 
ercise of that power, to declare that all shall be free. Are we then 
to see again Athenian and Lacedaemonian confederacies? To wage an¬ 
other Peloponnesian war to settle the ascendency between them? Or 
is this the tocsin of merely a servile war? That remains to be seen; 


444 


Slavery, The Missouri Compromise as to 


but not, I hope, by you or me. Surely, they will parley awhile, and 
give us time to get out of the way. What a Bedlamite is man! 15 
Jefferson's Writings, (Mem. ed.), pp. 308-9. 

Slavery 

In 1826, just before his death, Mr. Jefferson wrote to Ed¬ 
ward Everett, who had submitted to him a proposed amend¬ 
ment to the Constitution, relative to slavery, as follows: 

On the question of the lawfulness of slavery, that is of the right 
of one man to appropriate to himself the faculties of another without 
his consent, I certainly retain my early opinions. On that, however, of 
third persons to interfere between the parties, and the effect of con¬ 
ventional modifications of that pretension, we are probably nearer to¬ 
gether. I think with you, also, that the Constitution of the United 
States is a compact of independent nations subject to the rules ac¬ 
knowledged in similar cases, as well as that of amendment provided 
within itself, as, in case of abuse, the justly dreaded but unfavorable 
ultimo ratio gentium. The report on the Panama question in your 
letter has, as I suppose, got separated by the way. It will probably 
come by another mail. In some of the letters you have been kind 
enough to write me, I have been made to hope the favor of a visit 
from Washington. It would be received with sincere welcome, and 
unwillingly relinquished if no circumstance should render it incon¬ 
venient to yourself. I repeat always with pleasure the assurances of 
my great esteem and respect. 16 Jefferson's Writings, (Mem. ed.), 
pp. 162-3. 

Compromise Measures of 1850 

The following is from Mr.-Davis’ books: 

The first session of the Thirty-first Congress (1849-’50) was a 
memorable one. The recent acquisition from Mexico of New Mexico 
and California required legislation by Congress. In the Senate the 
bills reported by the Committee on Territories were referred to a 
select committee, of which Mr. Clay, the distinguished Senator from 
Kentucky, was chairman. From this committee emanated the bills 
which, taken together, are known as the compromise measures of 
1850. Davis on The Rise and Fall of The Confederate Government, 
Yol.'I, U. 

Mr. Davis relates this incident relative to these acts: 

While the compromise measures of 1850 were pending, and the 
excitement concerning them was at its highest, I one day overtook 
Mr. Clay, of Kentucky, and Mr. Berrien, of Georgia, in the Capitol 
grounds. They were in earnest conversation. It was the 7th of 

March—the day on which Mr. Webster had delivered his great speech. 

Mr Clay, addressing me in a friendly manner which he had always 

employed since 1 was a school boy in Lexington, asked me what I 

thought of the speech. I liked it better than he did. He then sug¬ 
gested that I should “join the compromise men,” saying that it was 
a measure which he thought would probably give, peacp to the coun- 


Peonage as a Form of Slavery 


445 


try for thirty years—the period that had elapsed since the adoption 
of the compromise of 1820. Then, turning to Mr. Berrien, he said, 
“You and I will be under ground before that time, but our young 
friend here may have trouble to meet.” I somewhat impatiently de¬ 
clared my unwillingness to transfer to posterity a trial which they 
would be relatively less able to meet than we were, and passed on my 
way. Davis on The Rise and Fall of the Confederate Government , 
Vol. I, 17, (note.) 


Peonage as a Form of Slavery 

The Supreme Court of the United States thus defines and 
discusses the subject : 

Peonage may be defined as a status or condition of compulsory 
service, based upon the indebtedness of the peon to the master. The 
basal fact is indebtedness. As was said in 1 N. Mex. 190: “One fact 
existed universally; all were indebted to their masters. This was 
the cord by which they seemed bound to their masters’ service.” 
Upon this is based a condition of compulsory service. Peonage is 
sometimes classified as voluntary or involuntary, but this implies sim¬ 
ply a difference in the mode of origin, but none in the character of 
the servitude. The one exists where the debtor voluntarily contracts 
to enter the service of his creditor. The other is forced upon the 
debtor by some provision of law. But peonage, however created, is 
compulsory service, involuntary servitude. The peon can release 
himself therefrom, it is true, by the payment of the debt, but other¬ 
wise the service is enforced. A clear distinction exists between peon¬ 
age and the voluntary performance of labor or rendering of services 
in payment of a debt. In the latter case the debtor, though contract¬ 
ing to pay his indebtedness by labor or service, and subject like any 
other contractor to an action for damages for breach of that contract, 
can elect at any time to break it, and no law or force compels per¬ 
formance or a continuance of the service. We need not stop to con¬ 
sider any possible or exceptional cases, such as the service of a 
sailor, 165 U. S. 275, or the obligations of a child to its parents, or of 
an apprentice to his master, or the power of the legislature to make 
unlawful and punish criminally an abandonment by an employe of 
his post of labor in any extreme case. That which is contemplated 
by the statute is compulsory service to secure the payment of a debt. 
Is this legislation within the power of Congress? It may be con¬ 
ceded as a general proposition that the ordinary relations of indi¬ 
viduals are subject to the control of the states and are not entrusted 
to the general government, but the 13th amendment, adopted as an 
outcome of the civil war, reads: 

“Sec. 1. Neither slavery nor involuntary servitude, except as a 
punishment for crime whereof the party shall have been duly con¬ 
victed, shall exist within the United States, or any place subject to 
their jurisdiction. 

“Sec. 2. Congress shall have power to enforce this article by ap¬ 
propriate legislation.” 

This amendment denounces a status or condition, irrespective of 
the manner or authority by which it is created. The prohibitions of 


446 


Peonage as a Form of Slavery 


the 14th and 15th amendments are largely upon the acts of the states, 
but the 13th names no party or authority, but simply forbids slavery 
and involuntary servitude, grants to Congress power to enforce this 
proposition by appropriate legislation. The differences between the 
13th and subsequent amendments have been fully considered. In 109 
U. S. 3-23, the court said: 

“This amendment, as well as the 14th, is undoubtedly self-execut¬ 
ing without any ancillary legislation, so far as its terms are appli¬ 
cable to any existing state of circumstances. By its own unaided 
force and effect it abolished slavery, and established universal free¬ 
dom. Still, legislation may be necessary and proper to meet all the 
various cases and circumstances to be affected by it, and to prescribe 
proper modes of redress for its violation in letter or spirit. And 
such legislation may be primary and direct in its character; for the 
amendment is not a mere prohibition of state laws establishing or 
upholding slavery, but an absolute declaration that slavery or invol¬ 
untary servitude shall not exist in any part of the United States. 

99 

Section 5526 punishes “every person who holds, arrests, returns, 

or causes to be held, arrested, or returned.” Three distinct acts are 

here mentioned—holding, arresting, returning. The disjunctive “or” 
indicates the separation between them, and shows that either one 
may be the subject of indictment and punishment. A party may hold 
another in a state of peonage without ever having arrested him for 
that purpose. He may come by inheritance into the possession of an 
estate in which the peon is held, and he simply continues the condi¬ 
tion which was existing before he came into possession. He may also 
arrest an individual for the purpose of placing him in a condition of 
peonage, and this whether he be the one to whom the involuntary 
service is to be rendered or simply employed for the purpose of mak¬ 
ing the arrest. Or he may, after one has fled from a state of peon¬ 

age, return him to it, and this whether he himself claims the service 
or is acting simply as an agent for another to enforce the return. 
187 U. S. 215-91 . 

State statutes providing that defendants in criminal cases 
could confess judgment for fine and costs with sureties and 
then providing that the defendant should work and labor for 
the surety until the amount was paid were construed by the 
Supreme Court of the United States. 1 

The Court said: 

The validity of this system of State law must be judged by its 
operation and effect upon the rights secured by the Constitution of the 
United States and offenses punished by the Federal statutes. If such 
State statutes, upon their face,-or in the manner of their administra¬ 
tion, have the effect to deny rights secured by the Federal Constitu- 

lr These were Alabama statutes Secs. of the United States, though they had 

7632 to 7635 of the Code of 1907, held many times been held valid by the 

void on appeal to the Supreme Court Supreme Court of Alabama. 


White Slave Traffic, Form of Slavery 


447 


tion or to nullify statutes passed in pursuance thereto, they must 
fail. Bailey v. Alabama, 219 U. S., 219, 244; Henderson v. Mayor, 92 
U. S., 259, 268. 

Nor do we think this case is controlled by Freeman v. United 
States, 217 U. S., 539, cited by counsel for defendants in error. In 
that case it was held that a money penalty imposed for embezzlement 
which went to the creditor, and not into the Treasury, under the Penal 
Code of the Philippine Islands, did not make imprisonment for the 
non-payment of such penalty equivalent to imprisonment for debt. 
In that case, although the penalty affixed went to the creditor, it was 
part of the sentence imposed by the law as a punishment for the 
crime. 235 U. 8., U8, U9. 

Here the State has taken the obligation of another for the fine 
and costs, imposed upon one convicted for the violation of the laws 
of the State. It has accepted the obligation of the surety, and, in 
the present case, it is recited in the record that the money has been 
in fact paid by the surety. The surety and convict have made a new 
contract for service, in regard to the terms of which the State has 
not been consulted. The convict must work it out to satisfy the 
surety for whom he has contracted to work. This contract must be 
kept, under pain of re-arrest, and another similar proceeding for its 
violation, and perhaps another and another. Thus, under pain, of re¬ 
curring prosecutions, the convict may be kept at labor, to satisfy the 
demands of his employer. 

In our opinion, this system is in violation of rights intended to 
be secured by the Thirteenth Amendment, as well as in violation of 
the statutes to which we have referred, which the Congress has en¬ 
acted for the purpose of making that amendment effective. 235 TJ. 8., 
U8, 150. 

Congress passed statutes known as peonage statutes which under¬ 
took to strike down all State statutes, customs or usages, which com¬ 
pelled voluntary or involuntary servitude or labor, as peons in liquida¬ 
tion of any debt or demand other than as a punishment for crime. 
The States had attempted to comply with the thirteenth amendment 
by having the labor of the defendant to discharge the judgment of 
conviction. This judgment, however, was always paid or secured by 
the surety, for whom the defendant was required to labor and serve 
to repay him, for having paid the judgment. State statutes provided 
that the defendant should in open court enter into a written contract 
with the surety to so work and labor at wages stipulated in the con¬ 
tract, until the surety was fully repaid and if the defendant refused 
to perform the contract he was guilty of another offense, and could 
be convicted and sentenced to pay the fine and costs, as he had in 
the original case; and this could go on ad infinitum. The peonage 
acts of Congress were held to strike down these State statutes. See 
Clyatt’s Case, 197 U. S., 207; Bailey’s Case, 219 U. S., 219; Reynolds’ 
Case, 235 U. S., 133. 

White Slave Traffic 

The Supreme Court thus construes acts of Congress on the 
subject: 


448 


White Slave Traffic, Form of Slavery 


Section 8 of the act provides that it shall be known and referred 
to as the “White Slave Traffic Act,” and the several provisions of the 
act show that its underlying purpose is the suppression of traffic in 
women and girls for immoral purposes so far as such traffic comes 
within the jurisdiction of Congress over interstate and foreign com¬ 
merce. This purpose was also plainly stated by the committees of 
Congress in recommending the passage of the bill (Hi. Rept., No. 47, 
61st Cong., 2d Sess.; S. Rept., No. 886, 61st Cong., 2d Sess.) 

That the act is intended as a regulation of the transportation of 
persons as passengers appears from § 5, which provides that viola¬ 
tions of §§ 2, 3 and 4 may be prosecuted in any district from, through 
or into which any such woman or girl may have been carried or 
transported as a passenger. 227 U. 8., SIS. 

The act is constitutional as a regulation of interstate and foreign 
commerce. 

Transportation and transit of persons is commerce, persons being 
both the subject and the means of commercial intercourse. The state¬ 
ment of Mr. Justice Barbour, in New York, v. Miln, 11 Pet. 102, 136, 
that persons “are not the subject of commerce,” has never received the 
sanction of the court, but has been expressly refuted. Passenger 
Cases, 7 How. 282, 429; Henderson v. New York, 92 U. S. 259; Mobile 
v. Kimball, 102 U. S. 691; Gloucester Ferry Co. v. Pennsylvania, 114 
U. S. 196; Pickard v. Pullman Car Co., 117 U. S. 34; McCall v. Cali¬ 
fornia, 136 U. S. 104; Covington Bridge Co. v. Kentucky, 154 U. S. 
204. 227 U. 8. SlJf. 

Having the power to prohibit the transportation of women and 
girls in interstate and foreign commerce for immoral purposes, and 
having exercised such power, Congress may make the prohibition 
effectual by punishing any person who knowingly induces, solicits, or 
facilitates such illegal transportation. 

As to the power of Congress effectively to regulate interstate com¬ 
merce by reaching unlawful acts in their very inception, see Hipolite 
Egg Co. v. United States, 220 U. S. 45. 

Of course it will be said that women are not articles of merchan¬ 
dise, but this does not affect the analogy of the cases; the substance 
of the congressional power is the same, only the manner of its exer¬ 
cise must be accommodated to the difference in its objects. It is 
misleading to say that men and women have rights. Their rights 
cannot fortify or sanction their wrongs; and if they employ interstate 
transportation as a facility of their wrongs, it may be forbidden to 
them to the extent of the act of June 25, 1910, and we need go no far¬ 
ther in the present case. 

The principle .established by the cases is the simple one, when rid 
of confusing and distracting considerations, that Congress has power 
over transportation “among the several States;” that the power is 
complete in itself, and that Congress, as an incident to it, may adopt 
not only means necessary but convenient to its exercise, and the 
means may have the quality of police regulations. Gloucester Ferry 
Co. v. Pennsylvania, 114 U. S. 196, 215; Cooley, Constitutional Limita- 


Slavery, Abolition of 


44 !) 


tions, 7th ed. 856. We have no hesitation, therefore, in pronouncing, 
the act of June 25, 1910, The White Slave Law, a legal exercise of the 
power of Congress. 227 U. S., 323. 

The White Slave Traffic Act of 1910, against inducing women and 
girls to enter upon a life of prostitution or debauchery covers acts 
which might ultimately lead to that phase of debauchery which con¬ 
sists in sexual actions; and in this case held that there was no error 
in refusing to charge that the gist of the offense is the intention of 
the person when the transportation is procured, or that the word 
“debauchery” as used in the statute means sexual intercourse or that 
the act does not extend to any vice or immorality other than that 
applicable to sexual actions. 227 U. S. 326. 

On November 7, 1912, one Johnson was indicted for a violation of 
the White Slave Traffic Act (June 25, 1910, 36 Stat. 825 c. 395). He 
was arrested and the court fixed his bail at $30,000 but declined to 
accept as surety any one who was indemnified against loss, or to per¬ 
mit the defendant to deposit cash in lieu of bond. The defendant 
thereupon applied for a writ of habeas corpus on the ground (1) 
that excessive bail was required, on terms onerous and prohibitive, 
and (2) that the act under which he had been indicted was uncon¬ 
stitutional and void. 227 V. S. 21^6. 

Abolition of Slavery 

When Mr. Lincoln was elected president and Congress was 
overwhelmingly Republican and filled with Abolitionists and 
their sympathizers, the Southern States, or a majority of their 
people, believed that they were to be ruthlessly deprived of 
their Constitutional rights and therefore resolved to secede 
from the Union, which they did, and which resulted in four 
years of war between the Northern and Southern States, the 
bloodiest in history up to that date. Mr. Lincoln and his 
party disclaimed any intention, when elected, to disregard the 
Constitutional rights of the Southern States as to Slavery. 
The Southern States, however, refused to accept these prom¬ 
ises but believed that the party in power had determined to 
abolish Slavery in all the States and Territories as they did by 
force and arms, notwithstanding the Constitutional guaran¬ 
tees to the contrary. Whether Mr. Lincoln and his party 
would have, by force and arms, contrary to the Constitution, 
abolished Slavery, had the Southern States not have se¬ 
ceded as they did, which resulted in war, of course, cannot be 
known, but that it was done, contrary to the Constitution, 
cannot be denied. That Mr. Lincoln changed his views and 
policy on the subject is shown by the indisputable records. 


450 


Slavery, Abolition of 


Whether it was a necessary result of the war, and would not 
have happened but for the war, cannot be known and has 
therefore always been and always will be a debatable question. 

The following is taken from Mr. Lincoln’s first inaugural 
address: 

Apprehension seems to exist among the people of the Southern 
States that by the accession of the Republican Administration their 
property and their peace and personal security are to be endangered. 
There has never been any reasonable cause for such apprehension. In¬ 
deed, the most ample evidence to the contrary has all the while ex¬ 
isted and been open to their inspection. It is found in nearly all the 
published speeches of him who now addresses you. I do but quote 
from one of these speeches when I declare that— 

“I have no purpose, directly or indirectly, to interfere with the 
institution of slavery in the States where it exists. I believe I have 
no lawful right to do so, and I have no inclination to do so.” 

Those who nominated and elected me did so with full knowledge 
that I had made this and similar declarations and had never re¬ 
canted them; and more than this, they placed in the platform for my 
acceptance, and as a law to themselves and me, the clear and em¬ 
phatic resolution which I now read: 

“ Resolved , That the maintenance inviolate of the rights of the 
States, and especially the right of each State to order and control 
its own domestic institutions according to its own judgment exclu¬ 
sively, is essential to that balance of power on wilich the perfection 
and endurance of our political fabric depend; and we denounce the 
lawless invasion by armed force of the soil of any State or territory, 
no matter under what pretext, as among the gravest of crimes.” 1 

I now reiterate these sentiments, and in doing so I only press 
upon the public attention the most conclusive evidence of which the 
case is susceptible that the property, peace, and security of no section 
are to be in anywise endangered by the now incoming Administra¬ 
tion. I add, too, that all the protection which, consistently with the 
Constitution and the laws, can be given will be cheerfully given to all 
the States when lawfully demanded, for whatever cause—as cheer¬ 
fully to one section as to another. 

There is much controversy about the delivering up of fugitives 
from service of labor. The clause I now read is as plainly written in 
the Constitution as any other of its provisions: 

“No person held to service or labor in one State, under the laws 
thereof, escaping into another, shall in consequence of any law or 
regulation therein be discharged from such service or labor, but shall 
be delivered up on claim of the party to whom such service or labor 
may be due.” 

It is scarcely questioned that this provision was intended by those 
who made it for the reclaiming of what we call fugitive slaves; and 
the intention of the lawgiver is the law. All members of Congress 
swear their support to the whole Constitution—to this provision as 
much as to any other. To the proposition, then, that the slaves whose 
x Yet the states were invaded by armed forces. 


Slavery, Abolition of 


451 


cases came within the terms of this clause “shall be delivered up,” 
their oaths are unanimous. Now, if they would make the effort in 
good temper, could they not with nearly equal unanimity frame and 
pass a law by means of which to keep good that unanimous oath? 

There is some difference of opinion whether this clause should be 
enforced by national or by State authority, but surely that difference 
is not a very material one. If the slave is to be surrendered, it can 
be of but little consequence to him or to others by which authority it 
is done. And should anyone in any case be content that his oath shall 
go unkept on a merely unsubstantial controversy as to how it shall be 
kept? Messages and Papers of the Presidents, Vol. VI, pp. 5 and 6. 

Notwithstanding the above, within eighteen months there¬ 
after, and the Constitution unchanged, the President pro¬ 
claimed the slaves in all the Southern States to be free, and the 
Southern States invaded by armed Federal forces. The fol¬ 
lowing is taken from Mr. Lincoln’s subsequent proclamation: 

“Whereas on the 22d day of September, A. D. 1862, a proclamation 
was issued by the President of the United States, containing, among 
other things, the following, to wit: 

“That on the 1st day of January, A. D. 1863, all persons held as 
slaves within any State or designated part of a State the people whereof 
shall then be in rebellion against the United States shall be then, 
henceforward, and forever free; and the executive department of the 
United States, including the military and naval authority thereof, will 
recognize and maintain the freedom of such persons and will do no act 
or acts to repress such persons, or any of them, in any efforts they may 
make for their actual freedom. 

“And by virtue and power and. for the purpose aforesaid, I do order 
and declare that all persons held as slaves within said designated 
States and parts of States are and henceforward shall be free, and that 
the executive department of the United States, including the military 
and naval authorities thereof, will recognize and maintain the freedom 
of said persons.” Messages and Papers of the Presidents, Vol. VI, pp. 
157 and 158. 

If the President and Congress had no Constitutional right 
and power to free the slaves on the 4th of March, 1861, they 
certainly had no such power or right on the 26th day of Sep¬ 
tember, 1862, or on the first day of January, 1863, the Consti¬ 
tution being unchanged. Neither secession of a part of the 
States in the Union and a state of war could not and did not 
confer any legal or Constitutional rights and powers on the 
President or Congress. Hence, the act of freeing the slaves 
was one of force and in clear violation of Constitutional rights. 
This is exactly what the Southern States believed the North¬ 
ern States would do as soon as they acquired control of the 
executive and legislative departments of the Government, but 


452 


The Thirteenth Amendment 


whether or not the same result would have happened had the 
Southern States not have seceded, no one can prove, and the 
question will always be debatable and debated. 

The Thirteenth Amendment reads: 

“Sec. 1. Neither slavery nor involuntary servitude, except as a 
punishment for crime whereof the party shall have been duly con¬ 
victed, shall exist within the United States, or any place subject to its 
jurisdiction. 

“Sec. 2. Congress shall have power to enforce this article by ap¬ 
propriate legislation.” 

The Supreme Court thus construed this amendment: 

The meaning of this is as clear as language can make it. The 
things denounced are slavery and involuntary servitude, and Con¬ 
gress is given power to enforce that denunciation. All understand 
by these terms a condition of enforced compulsory service of one to 
another. While the inciting cause of the Amendment was the emanci¬ 
pation of the colored race, yet it is not an attempt to commit that 
race to the care of the Nation. It is the denunciation of a condition 
and not a declaration in favor of a particular people. It reaches ev¬ 
ery race and every individual, and if in any respect it commits one 
race to the Nation it commits every race and every individual there¬ 
of. Slavery or involuntary servitude of the Chinese, of the Italian, 
of the Anglo-Saxon are as much within its compass as slavery or in¬ 
voluntary servitude of the African. Of this Amendment it was 
said by Judge Miller in Slaughter House Cases, 16 Wall. 36, 69, “Its 
two short sections seem hardly to admit of construction. ... To 
withdraw the mind from the contemplation of this grand yet simple 
declaration of the personal freedom of all the human race within the 
jurisdiction of this Government . . . requires an effort, to say the 
least of it.” 

Scott v. Sandford, 19 How. 393, held that slaves were not citizens. 
The Emancipation Proclamation made them free, and it may be ad¬ 
mitted, made them citizens of the United States, but it did not secure 
to them practical freedom. That was done by the 13th Amendment, 
and because, under that amendment Congress may enact legislation 
acting primarily upon individuals, it may punish those who attempt 
by concerted action to deprive the Negro of his right to contract solely 
for the reason that he is a Negro. . . . 203 TJ. S. 13, 16. 

Before the Thirteenth Amendment was adopted the existence of 
freedom or slavery within any state depended wholly upon the con¬ 
stitution and laws of such state. However abhorrent to many was 
the thought that human beings of African descent were held as slaves 
and chattels, no remedy for that state of things as it existed in some 
of the states could be given by the United States in virtue of any 
power it possessed prior to the adoption of the Thirteenth Amend¬ 
ment. The “remedy” was by force and contrary to the Constitution. 
Strong as it may sound the South was fighting for a constitutional 
right. That condition, however, underwent a radical change when 
that Amendment became a part of the supreme law of the land and 


The Thirteenth Amendment 


453 


as such binding upon all the states and all the people, as well as upon 
every branch of government, Federal and state. By the Amendment 
it was ordained that “neither slavery nor involuntary servitude, ex¬ 
cept as a punishment for crime whereof the party shall have been 
duly convicted, shall exist within the United States or any place 
subject to their jurisdiction;” and “Congress shall have power to 
enforce this article by appropriate legislation.” Although in words 
and form prohibitive, yet, in law, by its own force, that Amendment 
destroyed slavery and all its incidents and badges, and established 
freedom. It also conferred upon every person within the jurisdic¬ 
tion of the United States (except those legally imprisoned for crime) 
the right, without discrimination against them on account of their 
race, to enjoy all the privileges that inhere in freedom. It went fur¬ 
ther, however, and, by its second section, invested Congress with 
power, by appropriate legislation, to enforce its provisions. To that 
end, by direct, primary legislation, Congress may not only prevent the 
re-establishing of the institution of slavery, pure and simple, but may 
make it impossible that any of its incidents or badges should exist or 
be enforced in any state or territory of the United States. It there¬ 
fore became competent for Congress, under the Thirteenth Amend¬ 
ment, to make the establishing of slavery, as well as all attempts, 
whether in the form of a conspiracy or otherwise, to subject anyone 
to the badges or incidents of slavery offenses against the United 
States, punishable by fine or imprisonment, or both. 203 U. S. 26-7. 

At the close of the civil war, when the problem of the emancipated 
slaves was before the Nation, it might have left them in a condition of 
alienage, or established them as wards of the government like the 
Indian tribes, and thus retained for the Nation jurisdiction over them, 
or it might, as it did, give them citizenship. It chose the latter. By 
the Fourteenth Amendment it made citizens of all born within the 
limits of the United States and subject to its jurisdiction. By the 
Fifteenth it prohibited any state from denying the right of suffrage on 
account of race, color or previous condition of servitude, and by the 
Thirteenth it forbade slavery or involuntary servitude anywhere within 
the limits of the land. Whether this was or was not the wiser way to 
deal with the great problem is not a matter for the courts to consider. 
It is for us to accept the decision, which declined to constitute them 
wards of the Nation or leave them in a jurisdiction of alienage where 
they would be subject to the jurisdiction of Congress, but gave them 
citizenship, doubtless believing that thereby in the long run their best 
interests would be subserved, they taking their chances with other 
citizens in the states where they should make their homes. 203 U. S. 19. 

In the Civil Rights Cases, 109 U. S. 3, 22, the court passed upon the 
constitutionality of an act of Congress providing for the full and equal 
enjoyment by every race, equally, of the accommodations, advantages 
and facilities of theatres and public conveyances, and other places of 
public amusement; and in which the court also considered the scope 
and effect of the Thirteenth Amendment. In that case the court said: 
“By its own unaided force and effect it abolished slavery, and estab¬ 
lished universal freedom. Still, legislation may be necessary and 
proper to meet all the various cases and circumstances to be affected 


454 


The Status of the Negro After the War 


by it, and to prescribe proper modes of redress for its violation in 
letter or spirit. And such legislation may be primary and direct in its 
character; for the Amendment is not a mere prohibition of state laws 
establishing or upholding slavery, but an absolute declaration that 
slavery or involuntary servitude shall not exist in any part of the 
United States. It is true, that slavery can not exist without law, any 
more than property in lands and goods can exist without law; and, 
therefore, the Thirteenth Amendment may be regarded as nullifying all 
state laws which establish or uphold slavery. But it has a reflex char¬ 
acter also, establishing and decreeing universal civil and political 
freedom throughout the United States; and it is assumed that the 
power vested in Congress to enforce the article by appropriate legisla¬ 
tion clothes Congress with power to pass all laws necessary and proper 
for abolishing all badges and incidents of slavery in the United States. 

. The long existence of African slavery in this country gave us 
very distinct notions of what it was, and what were its necessary in¬ 
cidents. Compulsory service of the slave for the benefit of the master, 
restraint of his movements except by the master’s will, disability to 
hold property, to make contracts, to have a standing in court, to be a 
witness against a white person, and such like burdens and incapacities, 
were the inseparable incidents of the institution. Severer punishments 
for crimes were imposed on the slave than on free persons guilty of the 
same offenses. . . . We must not forget that the province and 

scope of the Thirteenth and Fourteenth Amendments are different; 
the former simply abolished slavery; the latter prohibited the states 
from abridging the privileges or immunities of citizens of the U. S.— 
from depriving them of like liberty or property without due process of 
law.” 203 U. S. 30. 

If the Constitution had not been amended by adding thereto the 
13th, 14th and 15th amendments, the Northern States never could have 
enacted their will into law. Even after the surrender of the Southern 
army, if the Constitution had then been indorsed the Southern states 
would have been given every right for which they contended and the 
Northern states deprived of even one for which they contended. 

The result of the war was not to enforce the Constitutional Gov¬ 
ernment as the Constitution was then written and construed by the 
Supreme Court, but it was to change the Constitution and the form of 
Government so far as the question of slavery was concerned. 

The Status of the Negro 

The Supreme Court of the United States has this to say on 
the subject: 

The object of the 14th amendment was undoubtedly to enforce the 
absolute equality of the two races before the law, but in the nature of 
things-it could not have been intended to abolish distinctions based 
upon color, or to enforce social, as distinguished from political equality, 
or a commingling of the two races upon terms unsatisfactory to either. 
Laws permitting, and even requiring their separation in places where 
they are liable to be brought into contact do not necessarily imply the 
inferiority of either race to the other, and have been generally, if not 
universally, recognized as within the competency of the state legisla- 


The Status of the Negro After the War 


455 


tures in the exercise of their police power. The most common instance 
of this is connected with the establishment of separate schools for 
white and colored children, which has been held to be a valid exercise 
of the legislative power even by courts of states where the political 
rights of the colored race have been longest and most earnestly en¬ 
forced. 

One of the earliest of these cases is 5 Cush. 198, in which the 
supreme judicial court of Massachusetts held that the general school 
committee of Boston had power to make provision for the instruction 
of colored children in separate schools established exclusively for them, 
and to prohibit their attendance upon the other schools. “The great 
principle,” said Judge Shaw, p. 206, “advanced by the learned and 
eloquent advocate for the plaintiff,” (Mr. Chas. Sumner) “is, that by 
the constitution and laws of Massachusetts, all persons without dis¬ 
tinction of age or sex, birth or color, origin or condition, are equal 
before the law. . . . But, when this great principle comes to be 

applied to the actual and various conditions of persons in society, it 
will not warrant the assertion, that men and women are legally clothed 
with the same civil and political powers, and that children and adults 
are legally to have the same functions and to be subject to the same 
treatment; but only that the rights of all, as they are settled and reg¬ 
ulated by the law, are equally entitled to the paternal consideration 
and protection of the law for their maintenance and security.” It was 
held that the powers of the committee extended to the establishment 
of separate schools for children of different ages, sexes and colors, and 
that they might also establish special schools for poor and neglected 
children, who have become too old to attend the primary school, and 
yet have not acquired the rudiments of learning, to enable them to 
enter the ordinary schools. Similar laws have been enacted by congress 
under its general power of legislation over the District of Columbia, 
Rev. Stat. D. C. 281-3, 310, 319, as well as by the legislatures of many 
of the states, and have been generally, if not uniformly, sustained by 
the courts. 21 O. St. 198; 15 S. W. 765; 48 Cal. 36; 93 N. Y. 438; 83 
Ky. 49. 

Laws forbidding the intermarriage of the two races may be said in 
a technical sense to interfere with the freedom of contract, and yet 
have been universally recognized as within the police power of the 
state. 36 Ind. 389. 

The distinction between laws interfering with the political equality 
of the negro and those requiring the separation of the two races in 
schools, theatres and railway carriages has been frequently drawn by 
this court. Thus in 100 U. S. 303, it was held that a law of West Vir¬ 
ginia limiting to white male persons 21 years of age and citizens of the 
state, the right to sit upon juries, was a discrimination which implied 
a legal inferiority in civil society, which lessened the security of the 
right of the colored race, and was a step toward reducing them to a 
condition of servility. Indeed, the right of a colored man that, in the 
selection of jurors to pass upon his life, liberty and property, there shall 
be no exclusion of his race, and no discrimination against them because 
of color, has been asserted in a number of cases. 100 U. S. 313; 103 
U. S. 370; 107 U. S. 110; 162 U. S. 565. 163 U. S. 5M-5. 


456 


The Status of the Negro After the War 


If the two races are to meet upon terms of social equality, it must 
be the result of natural affinities, a mutual appreciation of each other’s 
merits and a voluntary consent of individuals. As was said in 93 N. Y. 
438-48: “This end can neither be accomplished nor promoted by laws 
which conflict with the general sentiment of the community upon 
whom they are designed to operate. . . . When the government, 

therefore, has secured to each of its citizens equal rights before the law 
and equal opportunities for improvement and progress, it has accom¬ 
plished the end for which it was organized and performed all of the 
functions respecting social advantages with which it is endowed.” Leg¬ 
islation is powerless to eradicate racial instincts or to abolish distinc¬ 
tions based upon physical differences, and the attempt to do so can 
only result in accentuating the difficulties of the present situation. If 
the civil and political rights of both races be equal one can not be in¬ 
ferior to the other civilly or politically. If one race be inferior to the 
other socially, the constitution of the United States can not put them 
upon the same plane. 

It is true that the question of the proportion of colored blood nec¬ 
essary to constitute a colored person, as distinguished from a white 
person, is one upon which there is a difference of opinion in the differ¬ 
ent states, some holding that any visible admixture of black blood 
stamps the person as belonging to the colored race, 5 Jones N. C. 1-11; 
others that it depends upon the preponderance of blood, 4 O. St. 354; 
17 O. St. 665; and still others that the preponderance of white blood 
must only be in the proportion of three fourths. 14 Mich. 406; 80 Va. 
538. But these are questions to be determined under the laws of each 
state and are not properly put in issue in this case. 163 U. 8. 551-2. 

The condition of the negro was such that he was not in the legal 
sense a person. Whether free or slave, he was something capable of 
being reduced to property, and, therefore, he did not fall within any 
category which would fit the genus man. 

But assuming that it is necessary to classify him at all, it may be 
said that he belongs to the class of “nationals,” and further was placed 
in a subclass by himself (under the Constitution as interpreted in the 
Dred Scott case), and that as member of that subclass he owed alle¬ 
giance to the United States, but was incapable of possessing constitu¬ 
tional rights such as the right to sue in the Federal courts, which was 
expressly guaranteed to the citizens of the United States. 

Thus political rights were accorded to some citizens and civil rights 
to all save the negro. 

It was for the purpose of removing from our Constitution this dis¬ 
ability that the Fourteenth Amendment was enacted. By it the negro 
stepped from the domain of zoology into that of history. 182 TJ. 8. 8If. 

The Dred Scott case simply held that the negro was so low in the 
scale of humanity that the states could not, by conferring freedom upon 
him, make him capable of becoming a citizen of the United States in 
the broad or passive sense. He was, therefore, neither ctiizen nor 
subject, but a being who, under the Constitution, was something differ¬ 
ent and apart from the rest of humanity. 

His anomalous position was thus described by Judge Taney: “In 
the opinion of the court the legislation and the histories of the times 
and the language used in the Declaration of Independence show that 
neither the class of persons who had been imported as slaves, nor 


Indians, Wards of Nation 


457 


their descendants, whether they had become free or not, were then 
acknowledged as a part of the people, nor intended to be included in 
the general words used in that memorable instrument. 

“It is difficult at this day to realize the state of public opinion in 
relation to that unfortunate race which prevailed in the civilized and 
enlightened portion of the world at the time of the Declaration of In¬ 
dependence, and when the Constitution of the United States was framed 
and adopted. But the public history of every European nation displays 
it in a manner too plain to be mistaken. 

“They had for more than a century been regarded as beings of an 
inferior order and altogether unfit to associate with the white race 
either in social or political relations; and so far inferior that they had 
no rights which the white man was bound to respect; and that the 
negro might lawfully and justly be reduced to slavery for his benefit. 
He was bought and sold, as an ordinary article of merchandise and 
traffic, whenever a profit could be made by it. This opinion was at 
that time fixed and universal in the civilized portion of the white race. 
It was regarded as an axiom in morals as well as in politics, which no 
one thought of disputing or supposed to be open to dispute; and men in 
every grade and position in society daily and habitually acted upon it 
in their private pursuits as well as in matters of public concern, with¬ 
out doubting for a moment the correctness of this opinion. 

“And in no nation was this opinion more firmly fixed or more uni¬ 
formly acted upon than by the English Government and the English 
people. They not only seized them on the coast of Africa and sold 
them or held them in slavery for their own use, but they took them as 
ordinary articles of merchandise to every country where they could 
make a profit upon them and were far more extensively engaged in this 
commerce than any other nation in the world. 

“The opinion thus entertained and acted upon in England was 
naturally impressed upon the colonies they founded on this side of 
the Atlantic. And, accordingly, a negro of the African race was re¬ 
garded by them as an article of property and held, and bought and 
sold as such, in every one of the thirteen colonies which united in the 
Declaration of Independence and afterwards formed the Constitution of 
the United States. The slaves were more or less numerous in the dif¬ 
ferent colonies, as slave labor was found more or less profitable. But 
no one seems to have doubted the correctness of the prevailing opinion 
of the time.” 19 How. 407-08. 182 U. S. 81-2. 

Indians “Wards of Nation’’ 

The Supreme Court of the United States thus describes the 
status of the Indians. 

The power of the General Government over these remnants of a 
race once powerful, now weak and diminished in numbers, is necessary 
to their protection, as well as to the safety of those among whom they 
dwell. It must exist in that Government because it never has existed 
anywhere else, because the theatre of its exercise is within the geo¬ 
graphical limits of the United States, because it has never been denied, 
and because it alone can enforce its laws on all tribes. United States 
v. Kagama, 118 U. S. 375, 384. 


458 


Indians, Wards of Nation 


Plenary authority over the tribal relations of the Indians has been 
exercised by Congress from the beginning, and the power has always 
been deemed a political one, not subject to be controlled by the judicial 
department of the Government. Lone Wolf v. Hitchcock, 187 U. S. 
553, 565. 

Citizenship, it is contended, was conferred upon the Creek Indians 
by the act of March 3, 1901, 31 Stat. 447, amending the act of February 
8, 1887, 24 Stat. 390, c. 119, by adding to the Indians given citizenship 
under that act “every Indian in the Indian Territory.” So amended, 
the act would read as to such Indian: “He is hereby declared to be a 
citizen of the United States and entitled to all the rights, privileges 
and immunities of such citizen.” Is there anything incompatible with 
such citizenship in the continued control of Congress over the lands of 
the Indian? Does the fact of citizenship necessarily end the duty or 
power of Congress to act in the Indian’s behalf? 

Certain aspects of the question have already been settled by the 
decisions of this court. That Congress has full power to legislate con¬ 
cerning the tribal property of the Indians has been frequently affirmed. 
221 U. 8. 311. 

In Cherokee Nation v. Hitchcock, 187 U. S. 294, 307, Mr. Justice 
White, speaking for the court said: 

“There is no question involved in this case as to the taking of prop¬ 
erty; the authority which it is proposed to exercise by virtue of the 
act of 1898, has relation merely to the control and development of the 
tribal property, which still remains subject to the administrative con¬ 
trol of the Government, even though the members of the tribe have 
been invested with the status of citizenship under recent legislation.” 

In United States v. Rickert, 188 U. S. 432, Mr. Justice Harlan, speak¬ 
ing for the court, said: 

“These Indians are yet wards of the Nation, in a condition of pupil¬ 
age or dependency, and have not been discharged from that condition. 
They occupy these lands with the consent and authority of the United 
States; and the holding of them by the United States under the act of 
1887, and the agreement of 1889, ratified by the act of 1891, is part of 
the national policy by which the Indians are to be maintained as well 
as prepared for assuming the habits of civilized life and ultimately the 
privileges of citizenship.” 221 U. 8. 312. 

In the early dealings of the Government with the Indian tribes the 
latter were recognized as possessing some of the attributes of nations, 
with whicb the former made treaties, and the policy of the Government 
was, sometimes by treaties and sometimes by the use of force, to put a 
stop to the wanderings of these tribes and locate them on some definite 
territory or reservation, there establishing for them a communal or 
tribal life. While this policy was in force, and this location of wander¬ 
ing tribes was being accomplished, much of the legislation of Congress 
ran in the direction of the isolation of the Indians, preventing general 
intercourse between them and their white neighbors in order that they 
might not be defrauded or wronged through the superior cunning and 
skill of those neighbors. The practice of dealing with the Indian tribes 
as separate nations was changed by a proviso inserted in the Indian 
appropriation act of March 3, 1871, which reads: “No Indian nation 
or tribe within the territory of the United States shall be acknowledged 


Indians, Wards of Nation 


459 


or recognized as an independent nation, tribe or power with whom the 
United States may contract by treaty.” From that time on the Indian 
tribes and the individual members thereof have been subjected to the 
direct legislation of Congress, which, for some time thereafter, con¬ 
tinued the policy of locating the tribes on separate reservations and 
perpetuating the communal or tribal life. 

While during these years the exercise of certain powers by the 
Indian tribes was recognized, yet their subjection to the full control 
of the United States was often affirmed. In 187 U. S. 565, it was said: 
‘‘Plenary authority over the tribal relations of the Indians has been 
exercised by congress from the beginning, and the power has always 
been deemed a political one, not subject to be controlled by the judicial 
department of the Government.” And the conclusion thus reached was 
supported by the authority of several cases. It is true we ruled, when 
treaties between the Indian tribes and the United States were the 
subject of consideration, that “how the words of the treaty were un¬ 
derstood by this unlettered people, rather than their critical meaning, 
should form the rule of construction.” 6 Pet. 515, 582. And we also said 
that the obligations which the United States were under to the Indians 
called for “such an interpretation of their acts and promises as justice 
and reason demand in all cases where power is exerted by the strong 
over those to whom they owe care and protection.” 119 U. S. 1, 28. 
But none of the decisions affirming the protection of the Indians ques¬ 
tioned the full power of the Government to legislate in respect to them. 

Of late years a new policy has found expression in the legislation 
of Congress—a policy which looks to the breaking up of tribal relations, 
the establishing of the separate Indians in individual homes, free from 
national guardianship and charged with all the rights and obligations of 
citizens of the United States. Of the power of the Government to carry 
out this policy there can be no doubt. It is under no constitutional 
obligation to perpetually continue the relationship of guardian and 
ward. It may at any time abandon its guardianship and leave the ward 
to assume and be subject to all the privileges and burdens of one 
sui juris. And it is for Congress to determine when and how that re¬ 
lationship of guardianship shall be abandoned. It is not within the 
power of the courts to overrule the judgment of Congress. It is true 
there may be a presumption that no radical departure is intended, and 
courts may wisely insist that the purpose of Congress be made clear 
by its legislation, but when that purpose is made clear the question is 
at an end. 197 U. S. 498-9. 

There have been comparatively few cases which discuss the legisla¬ 
tive power over private property held by the Indians. But those few 
all recognize that he is not excepted from the protection guaranteed 
by the Constitution. His private rights are secured and enforced to 
the same extent and in the sanfe way as other residents or citizens of 
the United States. In re Heff, 197 U. S. 488, 504; Cherokee Nation v. 
Hitchcock, 187 U. S. 294, 307; Smith v. Goodell, 20 Johns (N. Y.), 188; 
Lowry v. Weaver, 4 McLean, 82; Whirlwind v. Yon der Ahe, 67 Mo. 
App. 628; Taylor v. Drew, 21 Arkansas, 485, 487. His right of private 
property is not subject to impairment by legislative action, even while 
he is, as a member of a tribe and subject to the guardianship of the 
United States as to his political and personal status. This was clearly 
recognized in the leading case of Jones v. Meehan, 175 U. S. 1. There 


460 


A Plea For the Southern States 


it appeared that an Indian Chief owned in fee land which fronted on a 
stream. The chief died, and in 1891 his son and heir, during the con¬ 
tinuance of the tribal organization, let the land to Meehan for ten 
years. In 1894 he again let the same property to Jones for twenty 
years. In that year the Secretary of the Interior was authorized by 
Congress to approve the lease to Jones if the latter would increase the 
rental. This he did, and with the assent of the Indian and the Secre¬ 
tary of the Interior a lease was made to Jones. In the litigation which 
followed Meehan relied on the first contract made in the exercise of the 
Indian’s right of private property. Jones’ relief on that made under 
Congressional authority, and although the Indian was a member of the 
tribe and much more subject to legislative power than these plaintiffs, 
the court held that the subsequent act could not relate back so as to 
interfere with the right of property which the Indian possessed and 
conveyed as an owner in fee, and while Congress had power to make 
treaties, it could not affect titles already granted by the treaty itself. 

Nothing that was said in Tiger v. Western Investment Co., 221 U. S. 
286, is opposed to the same conclusion here. For that case did not in¬ 
volve property rights, but related solely to the power of Congress, to 
extend the period of the Indian’s disability. The statute did not at¬ 
tempt to take his land or any right, member or appurtenance there¬ 
unto belonging. It left that as it was. 224 U. 8. 677, 678. 

Although an Indian may be made a citizen of the United States and 
of the State in which the reservation for his tribe is located, the 
United States may still retain jurisdiction over him for offenses com¬ 
mitted within the limits of the reservation; and so held as to a crime 
committed by an Indian against another Indian on the Tulalip Indian 
Reservation in Washington, notwithstanding the Indians had received 
allotments under the treaties with the Omahas of March 16, 1834, and 
of Point Elliott of January 22, 1835. Matter of Heff, 197 U. S. 488, dis¬ 
tinguished, the Indian in that case being an allottee under the general 
allotment act of February 8, 1887, c. 119, 24 Stat. 388. 

Legislation of Congress is to be construed in the interest of the 
Indians; and, in the absence of a subjection in terms of the individual 
Indian to state laws and denial of further jurisdiction over him by the 
United States, a statute will not be construed as a renunciation of 
jurisdiction by the United States of crimes committed by Indians 
against Indians on Indian reservations. 215 U. 8. 278, 279. 

The Constitution of the Confederate States 

The Southern States having seceded from the Union, or 
attempted so to do, it was natural that they should form a 
new federation or confederation among themselves. This 
they did, and drafted, promulgated and adopted a new con¬ 
stitution. The constitution they adopted was almost identical 
with that which created the government from which they se¬ 
ceded. The Southern States, nor the people thereof, did not 
complain of and were not dissatisfied with any of its provi¬ 
sions. Their complaint was solely that they, and the people 
thereof, were deprived of their constitutional rights. Their 


A Plea For the Southern States 


461 


contention was that the Northern States, and the officers of 
the Federal Government, would not administer the govern¬ 
ment in accordance with the Constitution that created the 
government. They contended that the Southern States were 
then and would continue to be denied their constitutional 
rights, and they resolved to withdraw from the Union if the 
Union was unwilling to accord them their constitutional 
rights. 

While it cannot be said that the Federal Government itself 
denied the Southern States their constitutional rights as to 
slavery, many of the Northern States did deny the Southern 
States, or the people thereof, the rights as to slavery which 
the Constitution indubitably guaranteed to them. These 
states were absolutely unwilling to longer tolerate slavery 
anywhere in the United States; no matter if the Constitution 
of the United States did commit that question to respective 
states. These states and these abolitionists insisted upon the 
Federal Government assuming control of the question of slav¬ 
ery,—the Constitution to the contrary notwithstanding. As 
a result of the Presidential election of 1860 , the Southern 
States believed it to be determined on the part of the success¬ 
ful party to no longer observe the Constitution as to slavery; 
that the Federal Government would thereafter do what a 
number of the Northern States had already done—practically 
nullify the Constitution as to slavery;—and the Southern 
States resolved not to submit to it, and attempted to secede: 
just what the Northern States would have done if the Demo¬ 
crats had elected a President, and a majority of both houses 
can not be known but many believe that they would have 
seceded. 

This was a great political mistake on the part of the South¬ 
ern States. They should have remained in the Union, and 
the differences would have been settled peaceably. The great 
mistake was common to both,—the Northern States in failing 
to follow the advice of Washington, Jefferson, Madison, Lin¬ 
coln and others who advised the states calling a new consti¬ 
tutional convention to revise the Constitution. Mr. Lincoln 
advised this course in his race for the Senate, in his race for 
the Presidency, and in his first inaugural address. Washing¬ 
ton, Jefferson, Madison and others advised it, but the advice 
was not heeded: the differences were attempted to be adjusted 
by statutes, such as the Missouri Compromise, the Wilmot 
Proviso, the admission of one slave and one anti-slave state 


462 


A Plea For the Southern States 


at a time so as to preserve the equilibrium in the Senate. Pub¬ 
lic opinion, however, was constantly increasing against slav¬ 
ery and Congress had no power to enact the will of public 
opinion into law, because it was in violation of the Constitu¬ 
tion. No law, written or unwritten, can be enforced in a free 
republican or democratic government, when that law is con¬ 
trary to the fixed public opinion. “Public opinion sets bounds 
to all governments, and is the real sovereign of all free ones.” 
Cases often arise when public opinion must be obeyed even by 
the government itself. Written constitutions must bend or 
break under this irresistible pressure. 

Secession and the war between the states in 1861 was the 
case and occasion, when the government itself, and even the 
great Federal Charter, had to yield to the irresistible pressure 
of public opinion against slavery. The Constitution originally 
authorized slavery and secession, yet public opinion so 
changed until it would tolerate neither. Public opinion forced 
the Government, or those administering it, to deny the right of 
both. For years and years after the government was formed, 
the right of each state to secede from the Union, and to abso¬ 
lutely control the question of slavery within its own territory 
was not denied. Public opinion however ultimately began to 
change on both questions. 

In the early thirties public opinion had probably changed 
to the extent that the majority of statesmen in the United 
States then were opposed to and held against the right of 
secession. While the public opinion as to the masses was, from 
the thirties on, against slavery, or the right of the states to 
control the question, there was never any change of opinion 
among the real statesmen on this question because it was con¬ 
ceded that the states did have the undoubted right to control 
slavery within their own respective borders. Until the 13th 
amendment was ratified which was after the war, there was 
a difference of opinion among the statesmen as to whether or 
not Congress could or should control the question as to ter¬ 
ritory of the United States, not within a state. Public opinion 
among the masses, however, became so strong and so acute 
that the Government and those administering it could or would 
not resist it,—and even the decision of the Supreme Court 
itself was disregarded. 

During the thirties there developed trans-Atlantic forces 
which formed societies and raised funds and sent emissaries 
to the United States to preach, teach and aid the abolitionists. 


A Plea For the Southern States 


463 


The real object sought by this trans-Atlantic influence was 
not the abolition of slavery, but the dissolution of the Union. 
The question of slavery was used as a wedge which could be 
driven so as to split the Union wide open, which Great Britain 
then, and has ever, desired to accomplish, and this was the 
issue on which the European emissaries felt sure the Union 
could be divided, and they came very near succeeding. These 
trans-Atlantic forces gave aid and comfort to the abolitionists 
until they forced secession, and the formation of the Confed¬ 
eracy of the states: then they changed their aid and comfort 
to the states that had seceded, hoping thereby to dissolve the 
Union, and make one division of the Union their friends and 
allies against the other part of the Union. 

The facts showing the intrigues on the part of these trans- 
Atlantic societies are shown by Mr. Calhoun in his reports and 
papers while Secretary of War and of State. In his writings, 
other than these state papers, he predicted that the real ob¬ 
ject and purpose of these trans-Atlantic aid societies was not 
in the interest of humanity, and the abolition of slavery, as 
claimed; but of dividing the Union so as to cripple the one 
great competitive power in the Western Hemisphere, which 
threatened the supremacy of Great Britain in the commerce 
of the world. 

Great Britain has ever, and will ever, assail any govern¬ 
ment that threatens her supremacy in the commerce of the 
world. England has ever been a commercial nation. She has 
enjoyed the supremacy and control of the seas for centuries, 
and all of her alliances and leagues with other nations has ever 
been to preserve and maintain this supremacy. An exag¬ 
gerated statement of England’s attitude on this subject has 
been made by her enemies, “that she would sacrifice the liber¬ 
ties of every human being on earth in order to land one more 
ship load of wdieat at her ports.” While this is an exagge¬ 
rated statement, it is true that the diplomacy of England for 
hundreds of years has been chiefly directed to maintaining 
the control of the seas and the commerce of the world. The 
moment any nation in the world has shown the desire or abil¬ 
ity to compete with her, or to contest that supremacy, she 
has at once set about to prevent such other nation from be¬ 
coming a dangerous competitor in the control of the com¬ 
merce of the world. 

So the influences which led to the war between the states 
were not wholly cis-Atlantic, some of them were trans-At- 


464 


A Plea For the Southern States 


lantic; and this trans-Atlantic influence was delighted when 
the Southern States seceded, and the same influences which 
had aided the cause of the abolitionists were well-wishers, if 
not active aiders, of the seceding states as to the war between 
the states. 

While Mr. Calhoun did not live to see this trans-Atlantic 
influence rejoice in what they thought was a dismemberment 
of the Union, he did prophesy and predict that it was disunion 
that it sought rather than the freedom of the slaves, and if 
secession had succeeded in the war his prophecy would have 
been fulfilled in toto, instead of only in part. Modern his¬ 
tory has done Mr. Calhoun a great injustice in attributing to 
him a desire to destroy the Union, rather than to perpetuate 
it. No man, not even Mr. Webster or Mr. Lincoln, loved the 
Union any more sincerely than did Mr. Calhoun; nor did they 
desire more than he to perpetuate it. He advocated nullifica¬ 
tion chiefly because he believed it to be the only way to avoid 
secession or revolution, which both he and Mr. Webster agreed 
were inevitable if the Northern States continued to deny to 
the Southern States the rights guaranteed to them by the Con¬ 
stitution. While Mr. Webster, Mr. Jefferson, and Mr. Madi¬ 
son differed from him as to the Constitutional right of a state 
to nullify an act of Congress, or to exempt itself from the 
operation of a Federal statute, they all agreed with him that 
if the majority of the states continued to deny to the minority 
of the states their clear Constitutional rights, as they were 
doing as to slaves, that secession or revolution was inevitable 
—that the Constitution in this respect must be amended, or 
the rights of the states under it observed, or secession or revo¬ 
lution must follow. Mr. Calhoun believed that nullification 
was the only antidote for secession and revolution: in this, 
however, neither Webster, Clay, Madison or Jefferson agreed 
with him. Nullification, like the Missouri Compromise, for 
the time being did prevent secession or revolution, but it was 
only temporary. It did not remove the cause; to amend the 
Constitution to conform with public opinion as to slavery, or 
to remove or colonize the slaves, was the only thing that could 
give permanent or lasting relief. 

A constitutional convention of all the states to revise and 
amend the Constitution as to slavery would have removed the 
cause of sectional strife, and have prevented secession and the 
war between the states. If the people themselves had been 
given the opportunity to act on the subject, they would have 


A Plea For the Southern States 


465 


yielded to the will and acts of their representatives as they 
did in 1787. From 1787 to 1860, public opinion as to slavery 
had undergone a radical change, and at the latter date, it 
was not in accord with the constitutional provisions as to 
slavery, as it was in 1787. The makers of the Constitution an¬ 
ticipated this change of public opinion, and provided for 
amending the Constitution to conform to it, but neither the 
states, nor the people thereof, would avail themselves of the 
privilege, but sought to find relief through compromise stat¬ 
utes and by ignoring the plain mandate of the Constitution, 
which eventuated in secession and the war between the states. 

Some Facts Which History Has Ignored 

The Constitution proposed and unanimously adopted by the 
seceding states, which created the government under which 
they proposed to live, was almost an exact copy of the Fed¬ 
eral Constitution which created the government from which 
they seceded. 

This is conclusive proof that the Southern States and the 
people thereof had no complaint against the Federal Con¬ 
stitution, or the government created thereby. It was the fact 
that the Northern States, and those who administered the 
Federal government, denied and deprived the Southern States 
and the people thereof of their constitutional rights, of which 
the South complained. Partisan and sectional spirit and prej¬ 
udice had become so strong that the bare numerical majori¬ 
ties of states and people thereof were not willing to observe 
or obey the written constitutional provisions as to slavery. 
Public opinion and prejudice in the Northern States had 
grown to be so strong that the people of the Northern States 
were not willing to be longer bound by the ligaments of a 
written constitution. 

The same public opinion and prejudice had grown so strong 
in the Southern States that neither they nor the people there¬ 
of were willing to remain members or parts of a Federal gov¬ 
ernment, in which they were denied their constitutional 
rights. 

To what end and for what purpose was a written constitu¬ 
tion, if its provisions were not to be observed by the majori¬ 
ties as well as by the minorities? The nature of the complaint 
of the Southern States was the same as that of the Colonists 
in 1776. Their chief complaint was that they were denied 
their constitutional rights under Magna Charta. Mr. 


466 


A Plea For the Southern States 


Webster bad repeatedly warned the Northern States and the 
people thereof that if they continued to deny to the Southern 
States their constitutional rights as to slavery, the Southern 
States would be forced to secede,—a right not denied by lead¬ 
ing statesmen of former days. After secession had failed, the 
war ended in favor of the Northern States, the Southern States 
having been compelled, by superior force, to surrender, the 
Northern States found themselves unable to enact their will 
into law because the Constitution prohibited their will being 
enacted into law. A congress composed almost entirely of 
Northern men, and entirely of those who were opposed to' both 
secession and slavery, enacted scores of acts as to reconstruc¬ 
tion, test oath laws, civil rights, etc., all of which were clearly 
unconstitutional, and many of them were so declared by the 
Supreme Court of the United States, which at that time did 
not have a member on it from the Southern States, or one who 
was in sympathy with the Southern States. Hence a change 
of the Constitution was found to be necessary in order to en¬ 
force the will of the Northern States, and three amendments, 
the thirteenth, fourteenth and fifteenth amendments, were 
proposed and adopted, without which the will of the North¬ 
ern States never could have been legally enforced. 

The Northern States fought to abolish slavery, and pre¬ 
serve the Union in spite of the Constitution; and the South¬ 
ern States fought to preserve the Constitution if it destroyed 
the Union. If the Northern States had observed and obeyed 
the Constitution of the United States, there would never have 
been an occasion for secession or a war between the states. 
The only complaint that the Southern States ever made was 
that they were denied their constitutional rights. And that 
they were so denied there was no doubt. Their error was in 
seceding. They should have stayed in the Union, and joined 
with that portion of the Northern States, and the people 
thereof, who insisted upon changing the Constitution as to 
slavery so as to meet public opinion of that day. The result 
proved the prophecy of Madison when he said that “public 
opinion sets bounds to every government, and is the real sov¬ 
ereign in every free one.” 

Mr. Lincoln had truly said that the Union could not be 
preserved part slave and part free. The Constitution, how¬ 
ever, expressly provided for just such a condition, part slave 
and part free, in that it left the question of slavery within 
each state to be settled and determined by the respective 


467 


A Copy of the Constitution of Confederate States 

states. He therefore advised a constitutional convention to 
change the Constitution, so that the Union and not the re¬ 
spective states could determine the question. This advice was 
however not heeded by the North or South, and Mr. Lincoln 
was forced to the choice of preserving the Constitution or 
the Union by force, and he chose to preserve the Union, and 
the war was inevitable. Had he chosen to have preserved 
the Constitution, the Northern States would have seceded. A 
change of the Constitution or secession was inevitable. 

A COPY OF CONSTITUTION OF THE CONFEDERATE 
STATES OF AMERICA 

We, the people of the Confederate States, eaich State acting in its 
sovereign and independent character, in order to form a permanent 
and federal government, establish justice, insure domestic' tranquillity, 
and secure the blessings to ourselves and our posterity—invoking the 
favor and guidance of Almighty God—do ordain and establish this 
Constitution for the Confederate States of America. 

ARTICLE I 
Section 1 

All legislative powers herein delegated shall be vested in a Congress 
of the Confederate States, which shall consist of a Senate and House 
of Representatives. 

Section 2 x 

1. The House of Representatives shall be composed of members 
chosen every second year by the people of the several States; and the 
electors in each State shall be citizens of the Confederate States, and 
have the qualifications requisite for electors of the most numerous 
branch of the State Legislature; but no person of foreign birth, not a 
citizen of the Confederate States, shall be allowed to vote for any 
officer, civil or political, State or Federal. 

2. No person shall be a Representative who shall not have attained 
the age of twenty-five years, and be a citizen of the Confederate States, 
and who shall not, when elected, be an inhabitant of that State in 
which he shall be chosen. 

3. Representatives and direct taxes shall be apportioned among the 
several States, which may be included within this Confederacy, accord¬ 
ing to their respective numbers, which shall be determined, by adding 
to the whole number of free persons, including those bound to service 
for a term of years, and excluding Indians not taxed, three-fifths of 
all slaves. The actual enumeration shall be made within three years 
after the first meeting of the Congress of the Confederate States, and 
within every subsequent term of ten years, in such manner as they 
shall by law direct. The number of Representatives shall not exceed 
one for every fifty thousand, but each State shall have at least one 
Representative; and until such enumeration shall be made, the State 


468 A Copy of the Constitution of Confederate States 


of South Carolina shall be entitled to choose six; the State of Georgia 
ten; the State of Alabama nine; the State of Mississippi seven; the 
State of Louisiana six; and the State of Texas six. 

4. When vacancies happen in the representation from any State, 
the Executive authority thereof shall issue writs of election to fill such 
vacancies. 

5. The House of Representatives shall choose their Speaker and 
other officers; and shall have the sole power of impeachment; except 
that any judicial or other Federal officer, resident and acting solely 
within the limits of any State, may be impeached by a vote of two- 
thirds of both branches of the Legislature thereof. 

Section 3 

1. The Senate of the Confederate States shall be composed of two 
Senators from each State, chosen for six years by the Legislature 
thereof, at the regular session next immediately preceding the com¬ 
mencement of the term of service; and each Senator shall have one 
vote. 

2. Immediately after they shall be assembled, in consequence of 
the first election, they shall be divided as equally as may be into three 
classes. The seats of the Senators of the first class shall be vacated at 
the expiration of the second year; of the second class at the expiration 
of the fourth year; and of the third class at the expiration of the sixth 
year; so that one-third may be chosen every second year; and if vacan¬ 
cies happen by resignation, or otherwise, during the recess of the Leg¬ 
islature of any State, the Executive thereof may make temporary ap¬ 
pointments until the next meeting of the Legislature which shall then 
fill such vacancies. 

3. No person shall be a Senator who shall not have attained the 
age of thirty years, and be a citizen of the Confederate States; and 
who shall not, when elected, b£ an inhabitant of the State for which he 
shall be chosen. 

4. The Vice-President of the Confederate States shall be President 
of the Senate, but shall have no vote unless they are equally divided. 

5. The Senate shall choose their officers,*’ and also a Presi¬ 
dent pro tempore in the absence of the Vice-President, or when he shall 
exercise the office of the President of the Confederate States. 

6. The Senate shall have the sole power to try all impeachments. 
When sitting for that purpose, they shall be on oath or affirmation. 
When the President of the Confederate States is tried, the Chief Justice 
shall preside; and no person shall be convicted without the concur¬ 
rence of two-thirds of the members present. 

7. Judgment in cases of impeachment shall not extend further 
than to removal from office, and disqualification to hold and enjoy any 
office of honor, trust or profit, under the Confederate States; but the 
party convicted shall, nevertheless, be liable and subject to indictment, 
trial, judgment and punishment according to law. 

Section 4 

1. The times, places and manners of holding elections for Senators 
and Representatives, shall be prescribed in each State by the legislature 
thereof, subject to the provisions of this Constitution;'but the Congress 
may, at any time, by law, make or alter such regulations, except as to 
the times and places of choosing Senators. 


A Copy of the Constitution of Confederate States 469 


2. The Congress shall assemble at least once in every year; and 
such meeting shall be on the first Monday in December, unless they 
shall, by law, appoint a different day. 

Section 5 

1. Each House shall be the judge of the elections, returns, and 
qualifications of its own members, and a majority of each constitute a 
quorum to do business; but a smaller number may adjourn from day 
to day, and may be authorized to compel the attendance of absent 
members, in such a manner and under such penalties as each House 
may provide. 

2. Each House may determine the rules of its proceedings, punish 
its members for disorderly behavior, and with the concurrence of two- 
thirds of the whole number expel a member. 

3. Each House shall keep a journal of its proceedings, and from 
time to time publish the same, excepting such parts as may in their 
judgment require secrecy; and the yeas and nays of the members of 
either House, on any question, shall, at the desire of one-fifth of those 
present, be entered on the journal. 

4. Neither House, during the session of Congress, shall, without the 
consent of the other, adjourn for more than three days, nor to any 
other place than that in which the two Houses shall be sitting. 

Section 6 

1. The Senators and Representatives shall receive a compensation 
for their services, to be ascertained by law, and paid out of the treasury 
of the Confederate States. Th6y shall, in all cases, except treason, 
felony, and breach of the peace, be privileged from arrest during their 
attendance at the session of their respective Houses, and in going to 
and returning from the same; and for any speech or debate in either 
House, they shall not be questioned in any other place. 

2. No Senator or Representative shall, during the time for which 
he was elected, be appointed to any civil office under the authority 
of the Confederate States, which shall have been created, or the emolu¬ 
ments whereof shall have been increased during such time; and no 
person holding any office under the Confederate States shall be a mem¬ 
ber of either House during his continuance in office. But Congress 
may, by law, grant to the principal officer in each of the Executive De¬ 
partments a seat upon the floor of either House, with the privilege of 
discussing any measures appertaining to his department. 

Section 7 

1. All bills for raising revenue shall originate in the House of Rep¬ 
resentatives; but the Senate may propose or concur with amendments, 
as on other bills. 

2. Every bill which shall have passed both Houses, shall, before it 
becomes a law, be presented to the President of the Confederate States; 
if he approves, he shall sign it; but if not, he shall return it, with his 
objections at large on their journal, and proceed to reconsider it. If, 
after such reconsideration, two-thirds of that House shall agree to pass 
the bill, it shall be sent, together with the objections, to the other 
House, by which it shall likewise be reconsidered, and if approved by 
two-thirds of that House, it shall become a law. But in all such cases. 


470 A Copy of the Constitution of Confederate States 

the votes of both Houses shall be determined by yeas and nays, and 
the names of the persons voting for and against the bills shall be en¬ 
tered on the journal of each House respectively. If any bill shall not 
be returned by the President within ten days (Sundays excepted) after 
it shall have been presented to him, the same shall be a law, in like 
manner as if he had signed it, unless the Congress, by their adjourn¬ 
ment, prevent its return; in which case it shall not be a law. The 
President may approve any appropriation and disaprove any other ap¬ 
propriation in the same bill. In case he shall, in signing the bill, des¬ 
ignate the appropriations disapproved; and shall return a copy of such 
appropriations, with his objections, to the House in which the bill 
shall have originated; and the same proceedings shall then be had as 
in case of other bills disapproved by the President. 

3. Every order, resolution or vote, to which the concurrence of both 
Houses may be necessary, (except on a question of adjournment,) shall 
be presented to the President of the Confederate States; and before 
the same shall take effect, shall be approved by him; or being disap¬ 
proved by him, shall be re-passed by two-thirds of both Houses, accord¬ 
ing to the rules and limitations prescribed in case of a bill. 

Section 8 

The Congress shall have power— 

1. To lay and collect taxes, duties, imposts, and excises, for revenue 
necessary to pay the debts, provide for the common defence, and carry 
on the government of the Confederate States; but no bounties shall 
be granted from the treasury; nor shall any duties or taxes on im¬ 
portations from foreign nations be laid to promote or foster any branch 
of industry; and all duties, imposts, and excises, shall be uniform 
throughout the Confederate States: 

2. To borrow money on the credit of the Confederate States: 

3. To regulate commerce with foreign nations, and among the 
several States, and with the Indian tribes; but neither this, nor any 
other clause contained in the constitution, shall ever be construed to 
delegate the power to Congress to appropriate money for any internal 
improvement intended to facilitate commerce; except for the purpose of 
furnishing lights, beacons, and buoys, and other aids to navigation 
upon the costs, and the improvement of harbours and the removing of 
obstructions in river navigation, in all which cases, such duties shall 
be laid on the navigation facilitated thereby, as may be necessary to 
pay the costs and expenses thereof. 

4. To establish uniform laws of naturalization, and uniform laws on 
the subject of bankruptcies, throughout the Confederate States; but 
no law of Congress shall discharge any debt contracted before the 
passage of the same. 

5. To coin money, regulate the value thereof and of foreign coin, 
and fix the standard of weights and measures. 

6. To provide for the punishment of counterfeiting the securities 
and current coin of the Confederate States. 

7. To establish post-offices and post-routes; but the expenses of the 
Post-office Department, after the first day of March in the year of our 
Lord eighteen hundred and sixty-three, shall be paid out of its own 
revenues. 


A Copy of the Constitution of Confederate States 471 


8. To promote the progress of science and useful arts, by securing 
for limited times to authors and inventors the exclusive right to their 
respective writings and discoveries. 

9. To constitute tribunals inferior to the Supreme Court. 

10. To define and punish piracies and felonies committed on the 
high seas, and offences against the law of nations. 

11. To declare war, grant letters of marque and reprisal, and 
make rules concerning captures on land and water. 

12. To raise and support armies; but no appropriation of money 
to that use shall he for a longer term than two years. 

13. To provide and maintain a navy. 

14. To make rules for the government and regulation of the land 
and naval forces. 

15. To provide for calling forth the militia to execute the laws of 
the Confederate States, suppress insurrections, and repel invasions. 

16. To provide for organizing, arming, and disciplining the militia, 
and for governing such part of them as may be employed in the service 
of the Confederate States; reserving to the States, respectively, the 
appointment of the officers, and the authority of training the militia 
according to the discipline prescribed by Congress. 

17. To exercise exclusive legislation, in all cases whatsoever, over 
auch district (not exceeding ten miles square) as may, by cession of 
one of more States and the acceptance of Congress, become the seat of 
the government of the Confederate States: and to exercise like au¬ 
thority over all places purchased by the consent of the legislature of 
the State in which the same shall be, for the erection of forts, mag¬ 
azines, arsenals, dockyards, and other needful buildings: and 

18. To make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other powers 
vested by this Constitution in the government of the Confederate 
States, or in any department or officer thereof. 

Section 9 

1. The importation of negroes of the African race, from any for¬ 
eign country other than the slaveholding States or Territories of the 
United States of America, is hereby forbidden; and Congress is re¬ 
quired to pass such laws as shall effectually prevent the same. 

2. Congress shall also have power to prohibit the introduction of 
slaves from any State not a member of, or Territory not belonging to, 
this Confederacy. 

3. The privileges of the writ of habeas corpus shall not be sus¬ 
pended, unless when in cases of rebellion or invasion the public safety 
may require it. 

4. No bill of attainder, ex post facto law, or law denying or im¬ 
pairing the right of property in negro slaves shall be passed. 

5. No capitation or other tax shall be laid, unless in proportion 
to the census or enumeration hereinbefore directed to be taken. 

6. No tax or duty shall be laid on articles exported from any State, 
except by a vote of two-thirds of both Houses. 

7. No preference shall be given by any regulation of commerce or 
revenue to the ports of one State over those of another. 

8. No money shall be drawn from the treasury, but in consequence 


472 A Copy of the Constitution of Confederate States 


of appropriations made by law; and a regular statement and account 
of the receipts and expenditures of all public money shall be published 
from time to time. 

9. Congress shall appropriate no money from the treasury except 
by a vote of two-thirds of both Houses, taken by yeas and nays, unless 
it be asked and estimated for by some one of the heads of departments, 
and submitted to Congress by the President; for the purpose of paying 
its own expenses and contingencies; or for the payment of claims 
against the Confederate States, the justice of which shall have been 
judicially declared by a tribunal for the investigation of claims against 
the government, which it is hereby made the duty of Congress to 
establish. 

10. All bills appropriating money shall specify in federal cur¬ 
rency the exact amount of each appropriation and purposes for which 
it is made; and Congress shall grant no extra compensation to any 
public contractor, officer, agent or servant, after such contract shall 
have been made or such service rendered. 

11. No title of nobility shall be granted by the Confederate States; 
and no person holding any office of profit or trust under them shall 
without the consent of the Congress, accept of any present, emolument, 
*office or title of any kind whatever, from any king, or foreign state. 

12. Congress shall make no law respecting an establishment of 
religion, or prohibiting the free exercise thereof; or abridging the 
freedom of speech, or of the press; or the right of the people peace¬ 
ably to assemble and petition the government for a redress of griev¬ 
ances. 

13. A well-regulated militia being necessary to the security of a 
free state, the right of the people to keep and bear arms shall not be 
infringed. 

14. No soldier shall, in time of peace, be quartered in any house, 
without the consent of the owner; nor in time of war, but in a manner 
to be prescribed by law. 

15. The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, shall 
not be violated; and no warrants shall issue but upon probable cause, 
supported by oath or affirmation, and particularly describing the place 
to be searched, and the persons or things to be seized. 

16. No person shall be held to answer for a capital or otherwise 
infamous crime, unless on a presentment or indictment of a grand 
jury, except in cases arising in the land or naval forces, or in the 
militia, when in actual service in time of war or public danger; nor 
shall any person be subject for the same offense to be twice put in 
jeopardy of life and limb; nor be compelled, in any criminal case, to be 
a witness against himself; nor to be deprived of life, liberty, or prop¬ 
erty, without due process of law; nor shall private property be taken 
for public use, without just compensation. 

17. In all criminal prosecutions, the accused shall enjoy the right 
to a speedy and public trial, by an impartial jury of the State and 
district wherein the crime shall have been committed, which district 
shall have been previously ascertained by law, and to be informed of 
the nature and cause of the accusation; to be confronted with the wit¬ 
nesses against him; to have compulsory process for obtaining witnesses 
in his favor; and to have the assistance of counsel for his defence. 


A Copy of the Constitution of Confederate States 473 

18. In suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved; 
and no fact so tried by a jury shall be otherwise re-examined in any 
court of the Confederacy, than according to the rules of common law. 

19. Excessive bail shall not be required, nor excessive fines im¬ 
posed, nor cruel and unusual punishments inflicted. 

20. Every law, or resolution having the force of law, shall relate 
to but one subject, and that shall be expressed in the title. 

Section 10. 

1. No State shall enter any treaty, alliance, or confederation; 
grant letters of marque and reprisal; coin money; make anyhing but 
gold and silver coin a tender in payment of debts; pass any bill of at¬ 
tainder, or ex post facto law, or law impairing the obligation of con¬ 
tracts; or grant any title of nobility. 

2. No State shall, without the consent of the Congress, lay any 
imposts or duties on imports or exports, except what may be absolutely 
necessary for executing its inspection laws; and the net produce of all 
duties and imposts, laid by any State on imports or exports, shall be 
for the use of the Treasury of the Confederate States; and all such laws 
shall be subject to the revision and control of Congress. 

3. No State shall, without the consent of Congress, lay any duty 
on tonnage, except on sea-going vessels, for the improvements of its 
rivers and harbors navigated by the said vessels; but such duties shall 
not conflict with any treaties of the Confederate States with foreign 
nations; and any surplus revenue, thus derived, shall, after making 
such improvement, be paid into the common treasury. Nor shall any 
State keep troops or ships-of-war in time of peace, enter into any agree¬ 
ment or compact with another State, or with a foreign power, or en¬ 
gage in war, unless actually invaded, or in such imminent danger as 
will not admit of delay. 


ARTICLE' II 
Section 1 

1. The executive power shall be vested in a President of the Con¬ 
federate States of America. He and the Vice-President shall hold their 
offices for the term of six years; but the President shall not be re- 
eligible. The President and Vice-President shall be elected as follows: 

2. Each State shall appoint, in such manner as the legislature 
thereof may direct, a number of electors equal to the whole number 
of Senators and Representatives to which the State may be entitled 
in the Congress; but no Senator or Representative or person holding 
an office of trust or profit under the Confederate States, shall be ap¬ 
pointed an elector. 

3. The electors shall meet in their respective States and vote by 
ballot for President and Vice-President, one of whom, at least, shall 
not be an inhabitant of the same State with themselves; they shall 
name in their ballots the person voted for as President, and in distinct 
ballots the person voted for as Vice-President, and they shall make 
distinct lists of all persons voted for as President, and of all persons 
voted for as Vice-President, and of the number of votes for each, which 
lists they shall sign and certify, and transmit, sealed, to the seat of 


474 


A Copy of the Constitution of Confederate States 


the government of the Confederate States, directed to the President 
of the Senate; the President of the Senate shall, in the presence of the 
Senate and House of Representatives, open all the certificates, and the 
votes shall then be counted; the person having the greatest number 
of votes for President shall be the President, if such number be a ma¬ 
jority of the whole number of electors appointed; and if no person 
have such majority, then, from the persons having the fewest num¬ 
bers, not exceeding three, on the list of those voted for as President, 
the House of Representatives shall choose immediately, by ballot, the 
President. But in choosing the President, the votes shall be taken by 
States—the representation from each State having one vote; a quorum 
for this purpose shall consist of a member or members from two-thirds 
of the States, and a majority of all the States shall be necessary to a 
choice. And if the House of Representatives shall not choose a Presi¬ 
dent, whenever the right of choice shall devolve upon them, before the 
fourth day of March next following, then the Vice-President shall act 
as President, as in case of the death or other constitutional disability 
of the President. 

4. The person having the greatest number of votes as Vice-Presi¬ 
dent, shall be the Vice-President, if such number be a majority of the 
whole number of electors appointed; and if no person have a majority, 
then, from the two highest numbers on the list, the Senate shall choose 
the Vice-President; a quorum for the purpose shall consist of two- 
thirds of the whole number of Senators, and a majority of the whole 
number shall be necessary to a choice. 

5. But no person constitutionally ineligible to the office of Presi¬ 
dent shall be eligible to that of Vice-President of the Confederate 
States. 

6. The Congress may determine the time of choosing the electors, 
and the day on which they shall give their votes; which day shall be 
the same throughout the Confederate States. 

7. No person except a natural born citizen of the Confederate 
States, or a citizen thereof at the time of the adoption of this Con¬ 
stitution, or a citizen thereof born in the United States prior to the 
20th of December, 1860, shall be eligible to the office of President; 
neither shall any person be eligible to that office who shall not have 
attained the age of thirty-five years, and been fourteen years a resident 
within the limits of the Confederate States, as they may exist at the 
time of his election. 

8. In case of the removal of the President from office, or of his 
death, resignation, or inability to discharge the powers and duties of 
the said office, the same shall devolve on the Vice-President; and the 
Congress may, by law, provide for the case of removal, death, resigna¬ 
tion, or inability, both of the President and Vice-President, declaring 
what officer shall then act as President; and such officer shall act ac¬ 
cordingly, until the disability be removed or a President shall be 
elected. 

9. The President shall, at stated times, receive for his services a 
compensation, which shall neither be increased nor diminished dur¬ 
ing the period for which he shall have been elected; and he shall not 
receive within that period any other emolument from the* Confederate 
States, or any of them. 


A Copy of the Constitution of Confederate States 475 

10. Before he enters on the execution of his office, he shall take 
the following oath or affirmation: 

“I do solemnly swear (or affirm) that I will faithfully execute the 
office of President of the Confederate States, and will, to the best of 
my ability, preserve, protect, and defend the Constitution.” 

Section 2 

1. The President shall be commander-in-chief of the army and navy 
of the Confederate States, and of the militia of the several States, 
when called into the actual service of the Confederate States; he may 
require the opinion, in writing, of the principal officer in each of the 
executive departments, upon any subject relating to the duties of their 
respective offices; and he shall have power to grant reprieves and par¬ 
dons for offences against the Confederate States, except in cases of 
impeachment. 

2. He shall have power, by and with the advice and consent of the 
Senate, to make treaties; provided two-thirds of the Senators present 
concur; and he shall nominate, and by and with the advice and consent 
of the Senate, shall appoint ambassadors, other public ministers and 
consuls, judges of the Supreme Court, and all other officers of the 
Confederate States whose appointments are not herein otherwise pro¬ 
vided for, and which shall be established by law; but the Congress 
may, by law, vest the appointment of such inferior officers, as they 
think proper, in the President alone, in the courts of law, or in the 
heads of departments. 

3. The principal officer in each of the executive departments, and 
all persons connected with the diplomatic service, may be removed from 
office at the pleasure of the President. All other civil officers of the 
executive department may be removed at any time by the President, 
or other appointing power, when their services are unnecessary, or 
for dishonesty, incapacity, inefficiency, misconduct, or neglect of duty; 
and when so removed, the removal shall be reported to the Senate, 
together with the reasons therefor. 

4. The President shall have power to fill vacancies that may happen 
during the recess of the Senate, by granting commissions which shall 
expire at the end of their next session; but no person rejected by the 
Senate shall be re-appointed to the same office during their ensuing 
recess. 

Section 3 

1. The President shall, from time to time, give to the Congress in¬ 
formation of the state of the Confederacy, and recommend to their 
consideration such measures as he shall judge necessary and expedient; 
he may, on extraordinary occasions, convene both Houses, or either 
of them; and in case of disagreement between them, with respect to the 
time of adjournment, he may adjourn them to such time as he shall 
think proper; he shall receive ambassadors and other public ministers; 
he shall take care that the laws be faithfully executed, and shall com¬ 
mission all the officers of the Confederate States. 

Section 4 

1. The President, Vice-President, and all civil officers of the Con¬ 
federate States, shall be removed from office on impeachment, for and 
conviction of, treason, bribery, or other high crimes and misdemeanors.. 


476 


A Copy of the Constitution of Confederate States 


ARTICLE III 

Section 1 

1. The judicial power of the Confederate States shall be vested in 
one Supreme Court, and in such inferior courts as the Congress may 
from time to time, ordain and establish. The judges, both of the Su¬ 
preme and inferior courts, shall hold their offices during good behavior, 
and shall, at stated times, receive for their services a compensation 
which shall not be diminished during their continuance in office. 

Section 2 

1. The judicial power shall extend to all cases arising under this 
Constitution, the laws of the Confederate States, and treaties made, or 
which shall be made, under their authority; to all cases affecting am¬ 
bassadors, other public ministers and consuls; to all cases of admiralty 
and maritime jurisdiction; to controversies to which the Confederate 
States shall be a party; to controversies between two or more States; 
between a State and citizens of another State, where the State is plain¬ 
tiff; between citizens claiming lands under grants of different States; 
and between a State or the citizens thereof, and foreign states, citizens 
or subjects; but no State shall be sued by a citizen or subject of any 
foreign state. 

2. In all cases affecting ambassadors, other public ministers and 
consuls, and those in which a State shall be a party, the Supreme 
Court shall have original jurisdiction. In all the other cases before 
mentioned, the Supreme Court shall have appellate jurisdiction both as 
to law and fact, with such exceptions and under such regulations as the 
Congress shall make. 

3. The trial of all crimes, except in cases of impeachment, shall 
be by jury, and such trial shall be held in the State where the said 
crimes shall have been committed; but when not committed within 
any State, the trial shall be at such place or places as the Congress 
may by law have directed. 

Section 3 

1. Treason against the Confederate States shall consist only in 
levying war against them, or in adhering to their enemies, giving 
them aid and comfort. No person shall be convicted of treason unless 
on the testimony of two witnesses to the same overt act, or on con¬ 
fession in open court. 

2. The Congress shall have power to declare the punishment of 
treason; but no attainder of treason shall work corruption of blood, 
or forfeiture, except during the life of the person attained. 

ARTICLE IV 
Section 1 

1. Full faith and credit shall be given in each State to the public 
acts, records, and judicial proceedings of every other State. And the 
Congress may, by general laws, prescribe the manner in which such 
acts, records, and proceedings shall be proved, and tne effect thereof. 


A Copy of the Constitution of Confederate States 477 


Section 2 

1. The citizens of each State shall be entitled to all the privileges 
and immunities of citizens in the several States; and shall have the 
right of transmit and adjourn in any State of this Confederacy, with 
their slaves and other property; and the right of property in said 
slaves shall not be thereby impaired. 

2. A person charged in any State with treason, felony, or other 
crime against the laws of such State, who shall flee from justice, and 
be found in another State, shall, on demand of the executive authority 
of the State from which he fled, be delivered up, to be removed to the 
State having jurisdiction of the crime. 

3. No slave or other person held to service or labor in any State 
or Territory of the Confederate States, under the laws thereof, escaping 
or lawfully carried into another, shall, in consequence of any law or 
regulation therein, be discharged from such service or labor; but shall 
be delivered up on claim of the party to whom such slave belongs, or 
to whom such service or labor may be due. 

Section 3. 

1. Other States may be admitted into this Confederacy by a vote 
of two-thirds of the whole House of Representatives and two-thirds of 
the Senate, the Senate voting by States; but no new State shall be 
formed or erected within the jurisdiction of any other State; nor any 
State be formed by the jurisdiction of two or more States, or parts of 
States, without the consent of the legislatures of the States concerned, 
as well as of the Congress. 

2. The Congress shall have the power to dispose of and make all 
needful rules and regulations concerning the property of the Confeder¬ 
ate States, including the lands thereof. 

3. The Confederate States may acquire new territory; and Con¬ 
gress shall have power to legislate and provide governments for the in¬ 
habitants of all territory belonging to the Confederate States, lying 
without the limits of the several States; and may permit them, at 
such times, and in such manner as it may by law provide, to form 
States to be admitted into the Confederacy. In all such territory, the 
institution of negro slavery as it now exists in the Confederate States, 
shall be recognized and protected by Congress and by the territorial 
government; and the inhabitants of the several Confederate States and 
Territories shall have the right ,to take to such territory any slaves 
lawfully held by them in any of the States or Territories of the Con¬ 
federate States. 

4. The Confederate States guarantee to every State that now is, or 
hereafter may become, a member of this Confederacy, a republican 
form of govrnment; and shall protect each of them against invasion; 
and on application of the legislature, (or of the executive, when the 
legislature is not in session,) against domestic violence. 

ARTICLE V 
Section 1 

1. Upon the demand of any three States, legally assembled in their 
several conventions, the Congress shall summon a convention of all 
the States, to take into consideration such amendments to the Consti- 


478 A Copy of the Constitution of Confederate States 

tution as the said States shall concur in suggesting at the time when 
the said demand is made; and should any of the proposed amend¬ 
ments to the Constitution be agreed on by the said convention—voting 
by States—and the same be ratified by the legislatures of two-thirds of 
the several States, or by conventions in two-thirds thereof—as the one 
or the other mode of ratification may be proposed by the general con¬ 
vention—they shall thenceforward form a part of this Constitution. 
But no State shall, without its consent, be deprived of its equal repre¬ 
sentation in the Senate. 

ARTICLE VI 

1. The Government established by this Constitution is the suc¬ 
cessor of the Provisional Government of the Confederate States of 
America, and all the laws passed by the latter shall continue in force 
until the same shall be repealed or modified: and all the officers ap¬ 
pointed by the same shall remain in office until their successors are 
appointed and qualified, or the offices abolished. 

2. All debts contracted and engagements entered into before the 
adoption of this Constitution shall be as valid against the Confederate 
States under this Constitution, as under the Provisional Government. 

3. This Constitution, and the laws of the Confederate States made 
in pursuance thereof, and all treaties made, or which shall be made, 
under the authority of the Confederate States, shall be the supreme 
law of the land; and the judges in every State shall be bound thereby, 
anything in the Constitution or laws of any State to the contrary not¬ 
withstanding. 

4. The Senators and Representatives before mentioned, and the 
members of the several State legislatures, and all executive and judicial 
officers, both of the Confederate States and of the several States, shall 
be bound by oath or affirmation to support this Constitution; but no 
religious test shall ever be required as a qualification to any office or 
public trust under the Confederate States. 

5. The enumeration, in the Constitution, of certain rights, shall not 
be construed to deny or disparage others retained by the people of the 
several States. 

6. The powers not delegated to the Confederate States by the Con¬ 
stitution, nor prohibited by it to the States, are reserved to the States, 
respectively, or to the people thereof. 

ARTICLE VII. 

1. The ratification of the conventions of five States shall be suf¬ 
ficient for the establishment of this Constitution between the States so- 
ratifying the same. 

2. When the five States shall have ratified this Constitution, in the 
manner before specified, the Congress under the Provisional Constitu¬ 
tion shall prescribe the time for holding the election of President and 
Vice-President; and for the meeting of the Electoral College; and for 
counting the votes, and inaugurating the President. They shall, also, 
prescribe the time for holding the first election of members of Congress 
under this Constitution, and the time for assembling the same. Until 
the assembling of such Congress, the Congress under the Provisional 


A Copy of the Constitution of Confederate States 479 

Constitution shall continue to exercise the legislative powers granted 
them; not extending beyond the time limited by the Constitution of 
the Provisional Government. 

Adopted unanimously by the Congress of the Confederate States of 
South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana and 
Texas, sitting in Convention at the capitol, in the city of Montgomery, 
Alabama, on the eleventh day of March, in the year Eighteen Hundred 
and Sixty-One. 

Howell Cobb, 

President of the Congress. 


South Carolina 


R. Barnwell Rhett 

C. G. Memminger 

Wm. Porcher Miles 
James Chestnut, Jr. 


R. W. Barnwell 

William W. Boyce 
Lawrence M. Keitt 

T. J. Withers 

Francis S. Bartow 
Martin J. Crawford 

Georgia 

Benjamin H. Hill 

Thos. R. R. Cobb 

Jackson Morton 

J. Patton Anderson 

Florida 

Jas. B. Owens 

Richard W. Walker 
Robt. H. Smith 

Colin J. McRae 
William P. Chilton 
Stephen F. Hale 

Alabama 

David P. Lewis 

Tho. Fearn 

Jno. Gill Shorter 

J. L. M. Curry 

Alex. M. Clayton 
James T. Harrison 
William S. Barry 

W. S. Wilson 

Mississippi 

Walker Brooke . 

W. P. Harris 

J. A. P. Campbell 

Alex, de Cloudet 

C. M. Conrad 

Louisiana 

Duncan F. Kenner 

Henry Marshall 

John Hemphill 
Thomas N. Waul 

John G. Reagan 

Texas 

Louis T. Wigfall 

John Gregg 

William Beck Ochiltree 


Williamson S. Oldham 

Notes on the Confederate Constitution 

The Confederate Constitution was modeled on the Constitution of 
the United States, with only such changes as experience had suggested 
for better practical working or greater perspicuity. The chief changes 
are easily noted. In accordance with the original draft of the Consti¬ 
tution of 1787, the official term of the President was fixed at six instead 
of four years, and it was provided that he should not be eligible for re- 
election. The President was empowered to remove his cabinet officers 


480 


Notes on Confederate Constitution 


or diplomatic agents; but, in all other cases, removals from office could 
be made only for cause, and the cause was to be reported to the 
Senate. 

Congress was authorized to provide for the admission of cabinet 
officers to a seat in either house, with the privilege of participating in 
debates pertaining to their departments. Unfortunately, this wise and 
judicious provision remained inoperative, owing to the failure of Con¬ 
gress to provide the appropriate legislation. 

Protective tariff-duties, bounties, and extra compensation for serv¬ 
ices of Government officials were altogether prohibited. 

The President was vested with the power to veto any appropriation 
in a bill without thereby disapproving any other appropriation in the 
same bill. 

Any two or more States were authorized to enter into compact for 
the improvement of navigable rivers flowing through or between them. 

A vote of two-thirds of each house—the Senate voting by States— 
was required for the admission of a new State. 

With regard to amendments to the Constitution, it was made obliga¬ 
tory on Congress, on the demand of any three States concurring in the 
proposed amendment or amendments, to summon a convention of all 
the States to consider and act upon them, voting by States, but re¬ 
stricted in its action to the particular proposition thus submitted. If 
approved by such convention, the amendments were to be subject to 
final ratification by two-thirds of the States. 

With regard to slavery and the slave-trade the provisions of the 
Constitution furnished an effective answer to the assertion, so often 
made, that the Confederacy was founded on slavery and intended to 
perpetuate and extend it. Property in slaves, already existing, was 
recognized and guaranteed, just as it was by the Constitution of the 
United States; and the rights of such property in the common Ter¬ 
ritories were protected against any such hostile discrimination as had 
been attempted in the Union. But the extension of slavery, in the 
only practical sense of that phrase, was more distinctly and effectively 
precluded by the Confederate than by the Federal Constitution. The 
further importation of negroes from any country, other than the slave¬ 
holding States and Territories of the United States, was peremptorily 
prohibited, and Congress was further endowed with the power to pro¬ 
hibit the introduction of slaves from any State or Territory not belong¬ 
ing to the Confederacy. 

The Confederacy of 1861 

On February 9th, Jefferson Davis, of Mississippi, was elect¬ 
ed President, and Alexander H. Stephens, of Georgia, Vice- 
President, of the Confederacy. On the 15th, Congress passed 
a resolution declaring “that it is the sense of this Congress 
that a commission of three persons be appointed by the Presi¬ 
dent-elect, as early as may be convenient after his inaugura¬ 
tion, and sent to the Government of the United States of 
America, for the purpose of negotiating friendly relations be¬ 
tween that government and the Confederate States of Amer- 


A Copy of Reconstruction Acts 


481 


ica, and for the settlement of all questions of disagreement be¬ 
tween the two governments upon principles of right, justice, 
equity and good faith. February 25th, an act was passed “to 
declare and establish the free navigation of the Mississippi 
River,” which prevented any interference with the passage 
of Northern as well as Southern vessels upon that stream. 

Status of Laws of the Confederate States 

All laws of the Confederate government, or of the States as makers 
thereof, were held to be null and void, but acts dealing merely with 
property rights, and even private personal rights, such as marriage 
and divorce, and judgments of the courts as to such rights, were treated 
as valid. 8 Wall. 11; 22 Wall. 308; 94 U. S. 434; 96 U. S. 580. 

As to the right of citizens of these States to a jury trial, when 
charged as for disloyal acts, see 1 Wall. 243. 

A COPY OF THE RECONSTRUCTION ACTS 

AN ACT 

To provide for the more efficient government of the rebel states. 

Whereas, no legal state governments or adequate protection for 
life or property now exists in the rebel states of Virginia, North Car¬ 
olina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Flor¬ 
ida, Texas and Arkansas; And whereas, it is necessary that peace and 
good order should be enforced in said states until loyal and republican 
state governments can be legally established; Therefore— 

Be it enacted by the senate and house of representatives of the 
United States of America in congress assembled, That said rebel states 
shall be divided into military districts and made subject to the military 
authority of the United States as hereinafter prescribed; and for that 
purpose Virginia shall constitute the first district; North Carolina and 
South Carolina the second district; Georgia, Alabama and Florida the 
third district; Mississippi and Arkansas the fourth district; and Louis¬ 
iana and Texas the fifth district. 

Sec. 2. And be it further enacted, That it shall be the duty of the 
president to assign to the command of each of said districts an officer 
of the army not below the rank of brigadier-general, and to detail a 
sufficient military force to enable such officer to perform his duties and 
enforce his authority within the district to which he is assigned. 

Sec. 3. And be it further enacted, That it shall be the duty of each 
officer assigned as aforesaid to protect all persons in their rights of 
person and property, to suppress insurrection, disorder, and violence, 
and to punish, or cause to be punished, all disturbers of the public 
peace and criminals, and to this end he may allow local civil tribunals 
to take jurisdiction of and try offenders, or, when in his judgment it 
may be necessary for the trial of offenders, he shall have power to 
organize military commissions or tribunals for that purpose, and all in¬ 
terference, under color of state authority, with the exercise of military 
authority under this act, shall be null and void. 

Sec. 4. A.nd be it further enacted, That all persons put under mil¬ 
itary arrest by virtue of this act shall be tried without unnecessary 


482 


A Copy of Reconstruction Acts 


delay, and no cruel or unusual punishment shall be inflicted; and no 
sentence of any military commission or tribunal hereby authorized, 
affecting the life or liberty of any person, shall be executed until it is 
approved by the officer in command of the district, and the laws and 
regulations for the government of the army shall not be affected by this 
act, except in so far as they conflict with its provisions; Provided, 
That no sentence of death, under the provisions of this aut, shall be 
carried into effect without the approval of the president. 

Sec. 5. And be it further enacted, That when the people of any one 
of said rebel states shall have formed a constitution of government in 
conformity with the constitution of the United States in all respects, 
framed by a convention of delegates elected by the male citizens of 
said state twenty-one years old and upwards, of whatever race, color, 
or previous condition, who have been resident in said state for one 
year previous to the day of such election, except such as may be dis¬ 
franchised for participation in the rebellion, or for felony at common 
law; and when such constitution shall provide that the elective fran¬ 
chise shall be enjoyed by all such persons as have the qualifications 
herein stated for electors of delegates; and when such constitution shall 
be ratified by a majority of the persons voting on the question of rati¬ 
fication who are qualified as electors for delegates; and when such con¬ 
stitution shall have been submitted to congress for examination and 
approval, and congress shall have approved the same; and when said 
state, by a vote of its legislature elected under said constitution, shall 
have adopted the amendment to the constitution of the United States 
proposed by the thirty-ninth congress, and known as article fourteen; 
and when said article shall have become a part of the constitution of 
the United States, said state shall be declared entitled to representation 
in congress, and senators and representatives shall be admitted there¬ 
from on their taking the oath prescribed by law; and then and there¬ 
after the preceding sections of this act shall be inoperative in said 
state; Provided, that no person excluded from the privilege of holding 
office by said proposed amendment to the constitution of the United 
States shall be eligible to election as a member of the convention to 
frame a constitution for any of said rebel states, nor shall any such 
person vote for members of such convention. 

Sec. 6. And be it further enacted, That until the people of said rebel 
states shall be by law admitted to representation in the congress of the 
United States, any civil government which may exist therein shall be 
deemed provisional only, and in all respects subject to the paramount 
authority of the United States at any time to abolish, modify, control, 
or supersede the same; and in all elections to any office under such 
provisional governments all persons shall be entitled to vote, and none 
others, who are entitled to vote under the fifth section of this act; and 
no person shall be eligible to any office under any such provisional gov¬ 
ernments who would be disqualified from holding office under the pro¬ 
visions of the third article of said constitutional amendment. 

Schuyler Colfax, 

Speaker of the House of Representatives. 

LaFayette S. Foster, 
President of the Senate pro tempore. 


A Copy of Reconstruction Acts 


483 


In House of Representatives, March 2, 1867. 

The president of the United States having returned to the house of 
representatives, in which it originated, the bill entitled “An act to pro¬ 
vide for the more efficient government of the rebel states,” with his 
objections thereto, the house of representatives proceeded, in pursuance 
of the constitution, to reconsider the same, and 

Resolved, That the said bill do pass, two-thirds of the house of rep¬ 
resentatives agreeing to pass the same. 

Attest: EIdward McPherson, 

Cleric H. R. U. S. 

In Senate of the United States, March 2, 1867. 

The senate having proceeded, in pursuance of the constitution, to 
reconsider the bill entitled “An act to provide for the more efficient 
government of the rebel states,” returned to the house of representa¬ 
tives by the president of the United States with his objections, and 
sent by the house of representatives to the senate with the message of 
the president returning the bill, 

Resolved, That the bill do pass, two-thirds of the senate agreeing to 
pass the same. 

Attest: J. W. Forney, 

March 2, 1867. Secretary of the Senate. 

(14 u. S. Stats, at Large, 428.) 

AN ACT 

Supplementary to an act entitled “An act to provide for the more effi¬ 
cient government of the rebel states,” passed March second, eigh¬ 
teen hundred and sixty-seven, and to facilitate restoration. 

Be it enacted by the senate and house of representatives of the 
United States of America in congress assembled, That before the first 
day of September, eighteen hundred and sixty-seven, the commanding 
general in each district defined by an act entitled “An act to provide 
for the more efficient government of the rebel states,” passed March 
second, eighteen hundred and sixty-seven, shall cause a registration to 
be made of the male citizens of the United States, twenty-one years of 
age and upwards, resident in each county or parish in the state or 
states included in his district, which registration shall include only 
those persons who are qualified to vote for delegates by the act afore¬ 
said, and who shall have taken and subscribed the following oath or 

affirmation: “I, .. do solemnly swear (or affirm), in the 

presence of Almighty God, that I am a citizen of the state of.; 

that I have resided in said state for.months next preceding this 

day, and now reside in the county of.. or the parish of.. in 

said state (as the case may be); that I am twenty-one years old; that 
I have not been disfranchised for participation in any rebellion or 
civil war against the United States, nor for felony committed against 
the laws of any state or of the United States; that I have never been 
a member of any state legislature, nor held any executive or judicial 
office in any state and afterwards engaged in insurrection or rebellion 
against the United States, or given aid or comfort to the enemies 
thereof; that I have never taken an oath as a member of congress of 
the United States, or as an officer of the United States, or as a member 
of any state legislature, or as an executive or judicial officer of any 






484 


A Copy of Reconstruction Acts 


state, to support the constitution of the United States, and afterwards 
engaged in insurrection or rebellion against the United States, or given 
aid or comfort to the enemies thereof; that I will faithfully support the 
constitution and obey the laws of the United States, and will, to the 
best of my ability, encourage others so to do—So help me God;” which 
oath or affirmation may be administered by any registering officer. 

Sec. 2. And be it -further enacted, That after the completion of the 
registration hereby provided for in any state, at such time and places 
therein as the commanding general shall appoint and direct, of which 
at least thirty days’ public notice shall be given, an election shall be 
held of delegates to a convention for the purpose of establishing a 
constitution and civil government for such state loyal to the Union, 
said convention in each state, except Virginia, to consist of the same 
number of members as the most numerous branch of the state legisla¬ 
ture of such state in the year eighteen hundred and sixty, to be ap¬ 
portioned among the several districts, counties, or parishes of such 
state by the commanding general, giving to each representation in the 
ratio of voters registered as aforesaid as nearly as may be. The conven¬ 
tion in Virginia shall consist of the same number of members as rep¬ 
resented the territory now constituting Virginia in the most numerous 
branch of the legislature of said state in the year eighteen hundred 
and sixty, to be apportioned as aforesaid. 

Sec. 3. And be it further enacted, That at said election the regis¬ 
tered voters of each state shall vote for or against a convention to form 
a constitution therefor under this act. Those voting in favor of such a 
convention shall have written or printed on the ballots by which they 
vote for delegates, as aforesaid, the words “For a convention,” and 
those voting against such a convention shall have written or printed 
on such ballots the words “Against a convention.” The persons ap¬ 
pointed to superintend said election, and to make return of the votes 
given thereat, as herein provided, shall count and make return of the 
votes given for and against a convention; and the commanding general 
to whom the same shall have been returned shall ascertain and declare the 
total vote in each state for and against a convention. If a majority of 
the votes given on that question shall be for a convention, then such 
convention shall be held as hereinafter provided; but if a majority of 
said votes shall be against a convention, then no such convention shall 
be held under this act; Provided, that such convention shall not be 
held unless a majority of all such registered voters shall have voted on 
the questions of holding such convention. 

Sec. 4. And be it further enacted, That the commanding general of 
each district shall appoint as many boards of registration as may be 
necessary, consisting of three loyal officers or persons, to make and 
complete the registration, superintend the election, and make return 
to him of the votes, list of voters, and of the persons elected as del¬ 
egates by a plurality of the votes cast at said election; and upon re¬ 
ceiving said returns he shall open the same, ascertain the persons 
elected as delegates, according to the returns of the officers who con¬ 
ducted said election, and make proclamation thereof; and if a majority 
of the votes given on that question shall be for a convention, the com¬ 
manding general, within sixty days from the date of election, shall 
notify the delegates to assemble in convention, at a time and place to 
be mentioned in the notification, and said convention, when organized, 


A Copy of Reconstruction Acts 


485 


shall proceed to frame a constitution and civil government according to 
the provisions of this act, and the act to which it is supplementary; 
and when the same shall have been so framed, said constitution shall 
be submitted by the convention for ratification to the persons registered 
under the provisions of this act at an election to be conducted by the 
officers or persons appointed, or to be appointed by the commanding 
general as hereinbefore provided, and to be held after the expiration of 
thirty days from the date of notice thereof, to be given by said con¬ 
vention; and the returns thereof shall be made to the commanding 
general of the district. 

Sec. 5. And be it further enacted, That if, according to said returns, 
the constitution shall be ratified by a majority of the votes of the regis¬ 
tered electors qualified as herein specified, cast at said election, at least 
one-half of all the registered voters voting upon the question of such 
ratification, the president of the convention shall transmit a copy of 
the same, duly certified, to the president of the United States, who shall 
forthwith transmit the same to congress, if then in session, and if not 
in session, then immediately upon its next assembling; and if it shall 
moreover appear to congress that the election was one at which all the 
registered and qualified electors in the state had an opportunity to 
vote freely, and without restraint, fear, or the influence of fraud, and 
if the congress shall be satisfied that such constitution meets the ap¬ 
proval of a majority of all the qualified electors in the state, and if 
the said constitution shall be declared by congress to be in conformity 
with the provisions of the act to which this is supplementary, and the 
other .provisions of said act shall have been complied with, and the 
said constitution shall be approved by congress, the state shall be 
declared entitled to representation, and senators and representatives 
shall be admitted therefrom as therein provided. 

Sec. 6. And be it further enacted, That all elections in the states 
mentioned in the said “Act to provide for the more efficient government 
of the rebel states,” shall, during the operation of said act, be by bal¬ 
lot; and all officers making the said registration of voters, and con¬ 
ducting said elections, shall, before entering upon the discharge of 
their duties, take and subscribe the oath prescribed by the act ap¬ 
proved July second, eighteen hundred and sixty-two, entitled “An act 
to prescribe an oath of office;” Provided, that if any person shall know¬ 
ingly and falsely take and subscribe any oath in this act prescribed, 
such person so offending, and being thereof duly convicted, shall be 
subject to the pains, penalties, and disabilities, which by law are pro¬ 
vided for the punishment of the crime of willful and corrupt perjury. 

Sec. 7. And be it further enacted, That all expenses incurred by the 
several commanding generals, or by virtue of any orders issued, or 
appointments made by them, under or by virtue of this act, shall be 
paid out of any moneys in the treasury not otherwise appropriated. 

Sec. 8. And be it further enacted, That the convention for each 
State shall prescribe the fees, salary, and compensation to be paid to 
all delegates and other officers and agents herein authorized or neces¬ 
sary to carry into effect the purposes of this act, not herein otherwise 
provided for, and shall provide for the levy and collection of such 
taxes on the property in such state as may be necessary to pay the same. 


486 


A Copy of Reconstruction Acts 


Sec. 9. And he it further enacted, That the word “article,” in the 
sixth section of the act to which this is supplementary, shall be con¬ 
strued to mean “section.” 

Schuyler Colfax, 

Speaker of the House of Representatives. 

B. F. Wade, 

President of the Senate pro tempore. 

In the House of Representatives, U. S., March 23, 1867. 

The president of the United States having returned to the house of 
representatives, in which it originated, the bill entitled “An act sup¬ 
plementary to an act entitled ‘An act to provide for the more efficient 
government of the rebel states,’ passed March second, eighteen hundred 
and sixty-seven, and to facilitate restoration,” with his objections 
thereto, the house of representatives proceeded, in pursuance of the 
constitution, to reconsider the same; and— 

Resolved, That the said bill do pass, two-thirds of the house of rep¬ 
resentatives agreeing to pass the same. 

Attest: Edwd. McPherson, 

Clerk H. R. U. S. 

In Senate of the United States, March 23, 1867. 

The senate having proceeded, in pursuance of the constitution, to 
reconsider the bill entitled “An act supplementary to an act entitled 
‘An act to provide for the more efficient government of the rebel states,’ 
passed March second, eighteen hundred and sixty-seven, and to facili¬ 
tate restoration,” returned to the house of representatives by the presi¬ 
dent of the United States, with his objections, and sent by the house 
of representatives to the senate, with the message of the president re¬ 
turning the bill— 

Resolved, That the bill do pass, two-thirds of the senate agreeing to 
pass the same. 

Attest: J. W. Forney, 

March 23, 1867. Secretary. 

(15 U. S. Stats, at Large, 2.) 

“Reconstruction Acts” and Reconstruction 

After the surrender of the Southern States in the war be¬ 
tween the States, Congress passed many acts known as Recon¬ 
struction Acts. The titles of many of these Acts were 1 ‘To 
Provide for a More Efficient Government of the Rebel States.” 
They were sui generis as American or English Statutes. They 
read more like the edicts of merciless tyrants than enactments 
of laws by civilized and Christianized law-makers. They 
were all vetoed by President Johnson; but easily passed over 
his veto, so great was the sectional passion and prejudice 
then among the States. They were cruelly, tyranically, and 
arbitrarily enforced, as they were intended so to be, until de¬ 
clared void by the Supreme Court of the United States. It is 
difficult to understand how any American would ever have 
supposed that they were Constitutional. They violated nearly 


Vices and Cruelties of Reconstruction Acts 487 

every fundamental principle of our Constitution and of all 
Federal or Republican form of Government. Congress thor¬ 
oughly usurped all the Executive and Judicial powers of the 
Government and far exceeded those granted to itself. As be¬ 
fore stated, the Acts were mere edicts and decrees of Congress 
as a Court convicting innocence without trials and hearings. 
The bills put millions of intelligent people under absolute 
control of military despots and ignorant negroes, who neither 
knew nor cared for a single principle of Civil Government. 
The Acts, declared and decreed, contrary to the National and 
State Constitutions, and undoubted facts, that there existed in 
no one of the thirteen States a legal form of Government. The 
military rule, established by the bills, was not to enforce the 
laws of a nation or state, nor to prevent violations of such 
laws, but to coerce the intelligence and morality of those 
States to submit to arbitrary, cruel and outrageous oppression 
by a horde of ignorant negroes and a field of office-seekers 
who had and would migrate to those States for the loaves and 
fishes of the offices. The President, in his veto, thus truth¬ 
fully, justly and severely criticised some of the provisions of 
these tyrannical acts: 

It is plain that the authority here given to the military officer 
amounts to absolute despotism. But to make it still more unendurable, 
the bill provides that it may be delegated to as many subordinates as 
he chooses to appoint, for it declares that he shall “punish or cause to 
be punished.” Such a power has not been wielded by any monarch in 
England for more than five hundred years. In all that time no people 
who speak the English language have borne such servitude. It reduces 
the whole population of ten States—all persons, of every color, sex, and 
condition, and every stranger within their limits—to the most abject 
degrading slavery. No master ever had a control so absolute over the 
slaves as this bill gives to the military officers over both white and 
colored persons. Messages and Papers of the Presidents, Vol. VI, p. * 
502. 

As to the Constitutionality of the measures, the President in 
his veto message, says: 

Have we the power to establish and carry into execution a measure 
like this? I answer: Certainly not, if we derive our authority from 
the Constitution and if we are bound by the limitations which it im¬ 
poses. 

This proposition is perfectly clear, that no branch of the Federal 
Government—executive, legislative, or judicial—can have any just 
powers except those which it derives through and exercises under the 
organic law of the Union. Outside of the Constitution we have no 
legal authority more than private citizens, and in it we have only so 
much as that instrument gives us. This broad principle limits all our 
functions and applies to all subjects. It protects not only the citizens 


488 


President Johnson's Veto of Reconstruction Acts 


of States which are within the Union, but it shields every human being 
who comes or is brought under our jurisdiction. We have no right 
to do in one place more than in another that which the Constitution 
says we shall not do at all. If, therefore, the Southern States were in 
truth out of the Union, we could not treat their people in a way which 
the fundamental law forbids. Messages and Papers of the Presidents, 
Vol. VI, p. 503. 

It will be observed that of the three kinds of military jurisdiction 
which can be exercised or created under our Constitution there is but 
one that can prevail in time of peace, and that is the code of laws en¬ 
acted by Congress for the government of national forces. That body 
of military law has no application to the citizen, nor even to the citizen 
soldier enrolled in the militia in time of peace. But this bill is not a 
part of that sort of military law, for that applies only to the soldier 
and not to the citizen, whilst, contrariwise, the military law provided 
by this bill applies only to the citizen and not to the soldier. Messages 
and Papers of the Presidents, Vol. VI, p. 505. 

It seems to be scarcely possible that anyone should seriously believe 
this consistent with a Constitution which declares in simple, plain, and 
unambiguous language that all persons shall have that right and that 
no person shall ever in any case be deprived of it. The Constitution 
also forbids the arrest of the citizen without judicial warrant founded 
on probable cause. This bill authorizes an arrest without warrant, at 
the pleasure of the military commander. The Constitution declares that 
“no person shall be held to answer for a capital or otherwise infamous 
crime unless on presentment by a grand jury.” This bill holds every 
person not a soldier answerable for all crimes and all charges without 
a presentment. The Constitution declares that “no person shall be 
deprived of life, liberty, or property without due process of law.” This 
bill sets aside all process of law, and makes the citizen answerable in 
his person and property to the will of one man, and as to his life to the 
will of two. Finally, the Constitution declares that “the privilege of 
the writ of habeas corpus shall not be suspended unless when, in case 
of rebellion or invasion, the public safety may require it,” whereas 
this bill declares martial law (which of itself suspends this great 
writ) in time of peace, and authorizes the military to make the arrest, 
and gives to the prisoner only one privilege, and that is a trial “with¬ 
out unnecessary delay.” He has no hope of release from custody, 
except the hope, such as it is, of release by acquittal before military 
commission. Messages and Papers of the Presidents, Vol. VI, p. 506. 

The purpose and object of the bill—the general intent which per¬ 
vades it from beginning to end—is to change the entire structure and 
character of the State governments and to compel them by force to the 
adoption of organic laws and regulations which they are unwilling to 
accept if left to themselves. The negroes have not asked for the privi¬ 
lege of voting; the vast majority of them have no idea of what it 
means. This bill not only thrusts it into their hands, but compels 
them, as well as the whites, to use it in a particular way. If they do 
not form a constitution with prescribed articles in it and afterwards 
elect a legislature which will act upon certain measures in a prescribed 


President Johnson’s Veto of Reconstruction Acts 


489 


way, neither blacks nor whites can be relieved from slavery which the 
bill imposes upon them. Messages and Papers of the Presidents, Vol. 
VI, p. 507. 

The bill also denies the legality of the governments of ten of the 
states which participated in the ratification of the amendment to the 
Federal Constitution abolishing slavery forever within the jurisdiction 
of the United States, and practically excludes them from the Union. 
If this assumption of the bill is correct, their concurrence can not be 
considered as having been legally given, and the important fact is 
made to appear that the consent of three-fourths of the States—the 
requisite number—has not been constitutionally obtained to the ratifi¬ 
cation of that amendment, thus leaving the question of slavery where 
it stood before the amendment was officially declared to have become 
a part of the Constitution. 

That the measure proposed by this bill does violate the Constitution 
in the particulars mentioned and in many other ways which I forbear 
to enumerate is too clear to admit of the least doubt. Messages and 
Papers of the Presidents, Vol. VI, p. 508. 

When I contemplate the millions of our fellow citizens of the South 
with no alternative left but to impose upon themselves this fearful and 
untried experiment of complete negro enfranchisement—and white dis¬ 
franchisement, it may be, almost as complete—or submit indefinitely to 
the rigor of martial law, without a single attribute of freemen, deprived 
of all sacred guaranties of our Federal Constitution, and threatened 
with even worse wrongs, if any worse are possible, it seems to me their 
condition is the most deplorable to which any people can be reduced. 
Messages and Papers of the Presidents, Vol. VI, p. 534. 

Thus over all these ten States this military government is now de¬ 
clared to have unlimited authority. It is no longer confined to the 
preservation of the public peace, the administration of criminal law, 
the registration of voters, and the superintendent of elections, but “in 
all respects” is asserted to be paramount to the existing civil govern¬ 
ments. 

It is impossible to conceive any state of society more intolerable 
than this; and yet it is to this condition that 12,000,000 American cit¬ 
izens are reduced by the Congress of the United States. Over every 
foot of the immense territory occupied by these American citizens the 
Constitution of the United States is theoretically in full operation. It 
binds all the people there and should protect them; yet they are denied 
every one of its sacred guaranties. 

Of what avail will it be to any one of these Southern people when 
seized by a file of soldiers to ask for the cause of arrest or for the pro¬ 
duction of the warrant? Of what avail to ask for the privilege of bail 
when in military custody, which knows no such thing as bail? Of what 
avail to demand a trial by jury, process for witnesses, a copy of the 
indictment, the privilege of counsel, or that greater privilege, the writ 
of habeas corpus? Messages and Papers of the Presidents, Vol. VI, p. 
537. 

A power that hitherto all the departments of the Federal Govern¬ 
ment, acting in concert or separately, have not dared to exercise is here 
attempted to be conferred on a subordinate military officer. To him, as 


490 President Johnson's Veto of Reconstruction Acts 

a military officer of the Federal Government, is given the power, sup¬ 
ported by “a sufficient military force,” to remove every civil officer of 
the State. What next? The district commander, who has thus dis¬ 
placed the civil officer, is authorized to fill the vacancy by the detail of 
an officer or soldier of the Army, or by appointment of “some other 
person.” 

This military appointee, whether an officer, a soldier, or “some other 
person,” is to perform “the duties of such officer or person so sus¬ 
pended or removed.” In other words, an officer or soldier of the Army 
is thus transformed into a civil officer. He may be made a governor, 
a legislator, or a judge. However unfit he may deem himself for such 
civil duties, he must obey the order. The officer of the Army must, if 
“detailed,” go upon the supreme bench of the State with the same 
prompt obedience as if he were detailed to go upon a court-martial. 
The soldier, if detailed to act as a justice of the peace, must obey as 
quickly as if he were detailed for picket duty. Messages ancl Papers of 
the Presidents, Vol. VI, p. 538. 

A singular contradiction is apparent here. Congress declares these 
local State governments to be illegal governments, and then provides 
that these illegal governments shall be carried on by Federal officers, 
who are to perform the very duties imposed on its own officers by this 
illegal authority of the State. It certainly would be a novel spectacle 
if Congress should attempt to carry on a legal State government by the 
agency of its own officers. It is yet more strange that Congress at¬ 
tempts to sustain and carry on an illegal State government by the 
same Federal agency. Messages and Papers of the Presidents, Vol. VI, 
p. 539. 

This bill and the acts to which it is supplementary are all founded 
upon the assumption that these ten communities are not States and 
that their existing governments are not legal. Throughout the legisla¬ 
tion upon this subject they are called “rebel States,” and in this par¬ 
ticular bill they are denominated “so-called States,” and the vice of 
illegality is declared to pervade all of them. The obligations of con¬ 
sistency bind a legislative body as well as the individuals who compose 
it. It is now too late to say that these ten political communities are 
not States of this Union. Declarations to the contrary made in these 
three acts are contradicted again and again by repeated acts of legis¬ 
lation enacted by Congress from the year 1861 to the year 1867. 

During that period, while these States were in actual rebellion, and 
after that rebellion was brought to a close, they have been again and 
again recognized as States of the Union. Representation had been ap¬ 
portioned to them as States. They have been divided into judicial dis¬ 
tricts for the holding of district and circuit courts of the United States, 
as States of the Union only can be districted. The last act on this sub¬ 
ject was passed July 23, 1866, by which every one of these ten States 
was arranged into districts and circuits. 

They have been called upon by Congress to act through their legisla¬ 
tures upon at least two amendments to the Constitution of the United 
States. As States they have ratified one amendment, which required 
the vote of twenty-seven States of the thirty-six then composing the 
Union. Messages and Papers of the Presidents, Vol. VI, p. 540. 


President Johnson's Veio of Reconstruction A cts 491 

It is clear to my apprehension that the States lately in rebellion 
are still members of the National Union. When did they cease to be 
so? The “ordinances of secession” adopted by a portion (in most of 
them a very small portion) of their citizens were mere nullities. If we 
admit now that'they were valid and effectual for the purpose intended 
by their authors, we sweep from under our feet the whole ground upon 
which we justified the war. Were those States afterwards expelled 
from the Union by the war? The direct contrary was averred by this 
Government to be its purpose, and so understood by all those who 
gave their blood and treasure to aid in its prosecution. It can not be 
that a successful war, waged for the preservation of the Union, had the 
legal effect of dissolving it. The victory of a nation’s arms was not 
the disgrace of her policy; the defeat of secession on the battlefield 
was not the triumph of its lawless principle. Nor could Congress, with 
or without the consent of the Executive, do anything which would 
have the effect, directly or indirectly, of separating the States from each 
other. To dissolve the Union is to repeal the Constitution which holds 
it together, and that is a power which does not belong to any part of 
this Government, or to all of them united. 

This is so plain that it has been acknowledged by all branches of the 
Federal Government. The Executive (my predecessor as well as my¬ 
self) and the heads of all the Departments have uniformly acted upon 
the principle that the Union is not only undissolved, but indissoluble. 
Messages and Pagers of the Presidents, Vol. VI, p. 560. 

To demonstrate the unconstitutional character of those acts I need 
do no more than refer to general provisions. It must be seen at once 
that they are not authorized. To dictate what alterations shall be 
made in the constitutions of the several States; to control the elections 
of State legislators and State officers, members of Congress and electors 
of President and Vice-President, by arbitrarily declaring who shall vote 
and who shall be excluded from that privilege; to dissolve State legis¬ 
latures or prevent them from assembling; to dismiss judges and other 
civil functionaries of the State and appoint others without regard to 
State law; to organize and operate all the political machinery of the 
States; to regulate the whole administration of their domestic and local 
affairs according to the mere will of strange and irresponsible agents, 
sent among them for that purpose—these are powers not granted to the 
Federal Government or to any one of its branches. Not being granted, 
we violate our trust by assuming them as palpably as we would by act¬ 
ing in the face of a positive interdict; for the Constitution forbids us to 
do whatever it does not affirmatively authorize, either by express words 
or by clear implication. If the authority we desire to use does not 
come to us through the Constitution, we can exercise it only by usur¬ 
pation, and usurpation is the most dangerous of political crimes. It 
leads directly and immediately to the establishment of absolute rule, 
for undelegated power is always unlimited and unrestrained. 

The acts of Congress in question are only objectionable for their 
assumption of ungranted power, but many of their provisions are in 
conflict with the direct prohibitions of the Constitution. Messages 
and Papers of the Presidents, Vol. VI, p. 562. 

Yet the system of measures established by these acts of Congress 
does not totally subvert and destroy the form as well as the substance 


492 


President Johnson’s Veto of Reconstruction Acts 


of republican government in the ten States to which they apply. It 
binds them hand and foot in absolute slavery, and subjects them to a 
strange hostile power, more unlimited and more likely to be abused than 
any other now known among civilized men. It tramples down all those 
rights in which the essence of liberty consists, and which a free govern¬ 
ment is always most careful to protect. It denies the habeas corpus 
and the trial by jury. Personal freedom, property and life, if assailed 
by the passion, the prejudice, or the rapacity of the ruler, have no 
security whatever. It has the effect of a bill of attainder or bill of pains 
and penalties, not upon a few individuals, but upon the whole masses, 
including the millions who inhabit the subject States, and even their 
unborn children. These wrongs, being expressly forbidden, can not be 
constitutionally inflicted upon any portion of our people, no matter how 
they may have come within our jurisdiction, and no matter whether 
they live in States, Territories, or districts. Messages and Papers of 
the Presidents, Yol. VI, p. 563. 

It is manifestly and avowedly the object of these laws to confer upon 
negroes the privilege of voting and to disfranchise such a number of 
white citizens as will give the former a clear majority at all elections 
in the Southern States. This, to the minds of some persons, is so im¬ 
portant that a violation of the Constitution is justified as a means of 
bringing it about. The morality is always false which excuses a wrong 
because it proposes to accomplish a desirable end. We are not per¬ 
mitted to do evil that good may come. But in this case the end itself 
is evil, as Well as the means. The subjugation of the States to negro 
domination would be worse than the military despotism under which 
they are now suffering. It is believed beforehand that the people 
would endure any amount of military oppression for any length of time 
rather than degrade themselves by the subjection of the negro race. 
Therefore they have been left without a choice. Negro suffrage was 
established by act of Congress, and the military officers were com¬ 
manded to superintend the process of clothing the negro race with the 
political privileges torn from white men. Messages and Papers of the 
Presidents, Yol. VI, p. 56\\. 

The great difference between the two races in physical, mental, and 
moral characteristics will prevent an amalgamation or fusion of them 
together in one homogeneous mass. If the inferior obtains the ascend¬ 
ency over the other, it will govern with reference only to its own in¬ 
terests—for it will recognize no common interest—and create such a 
tyranny as this continent has never witnessed. Already the negroes 
are influenced by promises of confiscation and plunder. They are 
taught to regard as an enemy every white man who has any respect 
for the rights of his own race. If this continues, it must become worse 
and worse, until all order will be subverted, all industry cease, and all 
fertile fields of the South grow up in wilderness. Of all the dangers 
which our nation has yet encountered, none are equal to those which 
must result from the success of the effort now making to Africanize 
the half of our country. Messages and Papers of the Presidents, Yol. 
VI, p. 566. 

The foregoing severe indictments of these tyrannical edicts, 
because they were not and probably were not intended to be, 


Notes on Reconstruction Acts 


493 


Constitutional statutes or acts of Congress, led Congress to 
institute impeachment proceedings against the President. Of 
course the information contained other grounds and specifica¬ 
tions of impeachable conduct, but it was the free and frequent 
exercise of the veto power as to the many vicious acts which 
Congress was passing which were intended to inflict “undue 
and cruel punishment’’ upon the people of the South, which 
chiefly induced Congress to attempt to remove the President 
from office. Prejudice, passion and sectional feelings were so 
strong that this impeachment failed by only one vote. 

Mr. Foster, a Northern and. Constitutional writer, thus 
speaks of the Reconstruction Acts: 

In view of the language of the Constitution, the decisions of the 
courts on cognate questions, and the action of Congress in other 
respects towards the States which were the seat of the insurrection, 
it seems impossible to find any justification for them in law, precedent, 
or consistency. The war was instituted against the South upon the 
theory announced by the President and both houses of Congress, who 
had rebelled. Foster on the Constitution, Vol. I, p. 265. 

The Reconstruction Acts must consequently be condemned as un¬ 
constitutional, founded on force, not law, and so tyrannical as to im¬ 
peril the liberty of the entire nation should they be recognized as bind¬ 
ing precedents. Foster on the Constitution, Vol. I, p. 267. 

If those cruel acts had been upheld as Constitutional 
enactments, the government of the United States could have 
been classed as the most cruel in the world’s history. It is 
inconceivable that if Nero had been president that he could 
have approved such tyrannical edicts. 

In referring to the history of the reconstruction measures of Con¬ 
gress, we may also mention the attempt in the name of the State of 
Mississippi to enjoin the President from enforcing those measures on 
the ground of unconstitutionality. The attempt failed; the Supreme 
Court of the United States holding that it was not in the power of 
the judiciary to coerce or restrain the President in the performance of 
his executive and political functions. Mississippi v. Johnson, 4 Wall. 
475. The case was distinguished from Marbury v. Madison, 1 Cranch, 
137, and Kendall v. Stockton, 12 Pet. 527, in which cases the acts to be 
performed were purely ministerial, and nothing was left to the discre¬ 
tion of the officer. See also Georgia v. Stanton, 6 Wall. 51. Story on 
the Constitution, Vol. V, p. 680, (note). 

Mr. Foster thus states the difficulties and oppressions caused 
by Reconstruction. 

The restoration of peace and order after the close of the Civil War, 
and the readmission of the conquered people to their former relations 
with the Federal government, presented the most difficult political 
and constitutional problem which the United States has had to solve. 


494 


Notes on Reconstruction Acts 


It was accomplished only by what was, in fact as well as name, a com¬ 
plete reconstruction of the Union. The result had established the 
illegality of secession, and the proceedings by the successful army had 
been justified upon the position that the war was made, not upon the 
seceding States, which could not be, and had not been, in law or fact 
separated from the Union, but upon such of the people in them as had 
combined to oppose the laws of the United States. Foster on the Con¬ 
stitution, Vol. I, p. 205. 

The situation was further complicated by the clause in the Con¬ 
stitution which would, if unamended, give to the Southern whites rep¬ 
resentation in the House of Representatives, based upon the whole 
number of free inhabitants, although by the State laws then upon their 
statute-books, the blacks, who were, in Mississippi, Louisiana and South 
Carolina, more than half the population, could not vote, so that, if the 
result of the war left that unchanged, the conquered section would have 
gained a stronger voice in the national councils than before. Foster on 
the Constitution, Vol. I, p. 207. 

The theory of forefeited rights was that upon which Congress finally 
acted. It was a compromise between the other views, and had little 
support in the logical interpretation of the Constitution, although great 
practical advantages. According to this, the insurgent States had never 
left, could not go out of the Union, and had always retained their po¬ 
litical existence, but by their rebellion they had forfeited their political 
right to share in the councils of the nation and even to complete local 
governments. Foster on the Constitution, Vol. I, p. 209. 

Both houses of Congress, through their power to determine the quali¬ 
fications of their members, excluded all persons who, in their opinion, 
were guilty of disloyalty. Several senators from the Confederate States, 
and one from the loyal State of Kentucky, were expelled for treason. 
The validity of this action by the House and Senate is beyond dispute. 
The law prescribing a test-oath for grand jurors remained upon the 
statute book until May 14th, 1884, when it was repealed, after the clear 
intimation by the Supreme Court that although it might be a constitu¬ 
tional exercise of the war-power, it was unconstitutional in time of 
peace. Foster on the Constitution, Vol. I, pp. 211-212. 

The shot which killed Lincoln was more injurious to the South than 
any other fired in the Civil War. It was his earnest desire to restore 
the insurgent States to their normal condition as soon as possible, with¬ 
out any more change than was absolutely necessary in the fundamental 
law. That the validity of the Proclamation of Emancipation should be 
recognized he was determined; but, beyond that, he was not disposed to 
impose further material conditions upon their return, although there 
can be little doubt but that he would have found some means of pro¬ 
tecting the freedmen fropa oppression. Foster on the Constitution, Vol. 
I, p. 211,. 

Mr. Davis thus describes the condition of the Confederate 
States and their people after the surrender: 

When the Confederate soldiers laid down their arms and went home, 
all hostilities against the power of the Government of the United States 
ceased. The powers delegated in the compact of 1787 by these States-, 


Notes on Reconstruction Acts 


495 


i. e., by the people thereof, to a central organization to promote their 
general welfare, had been used for their devastation and subjugation. 
It was conceded, as the result of the contest, that the United States 
Government was stronger in resousces than the Confederate Govern¬ 
ment, and that the Confederate States had not achieved their inde¬ 
pendence. 

Nothing remained to be done but for the sovereigns, the people of 
each State, to assert their authority and restore order. If the principle 
of the sovereignty of the people, the cornerstone of all our institutions, 
had survived and was still in force, it was necessary only thati the 
people of each State should reconsider their ordinances of secession, 
and again recognize the Constitution of the United States as the su¬ 
preme law of the land. The simple process would have placed the 
Union on its original basis, and have restored that which had ceased to 
exist, the Union by consent. Unfortunately, such was not the intention 
of the conqueror. The Union of free-wills and brotherly hearts, under 
a compact ordained by the people, was not his object. Henceforth there 
was to be established a Union of force. Sovereignty was to pass from 
the people to the Government of the United States, and to be upheld 
by those who had furnished the money and the soldiers for the war. 

The first step required, therefore, in the process for the reconstruc¬ 
tion of the new and forced Union, was to prepare those who had been 
the late champions of the sovereignty of the people to become suitable 
subjects under the new sovereign. Standing defenseless, stripped of 
their property, and exposed, as it was asserted, to the penalties of in¬ 
surrection on the one hand, and that of treason on the other, the Presi¬ 
dent of the United States, Mr. Andrew Johnson, who, as Vice-President, 
became President after the death of Mr. Lincoln, on May 29, 1865, thus 
addressed them: 

“To the end, therefore, that the authority of the Government of the 
United States may be restored, and that peace, order, and freedom may 
be re-established, I, Andrew Johnson, President of the United States, do 
proclaim and declare that I hereby grant to all persons who have di¬ 
rectly or indirectly participated in the existing rebellion, except as 
hereinafter excepted, amnesty and pardon, with restoration of all rights 
of property, except as to slaves, and except in cases where legal pro¬ 
ceedings under the laws of the United States providing for the confis¬ 
cation of property of persons engaged in the rebellion have been insti¬ 
tuted; but on the condition, nevertheless, that every such person shall 
take and subscribe the following oath or affirmation, and thencefor¬ 
ward keep and maintain said oath inviolate; and which oath shall be 
registered for permanent preservation, and shall be of tenor and effect 
following, to wit: 

“X,.. do solemnly swear, or affirm, in presence of Al¬ 

mighty God, that I will henceforth faithfully support and defend the 
Constitution of the United States and the Union thereunder, and that 
I will, in like manner, abide by and faithfully support all laws and 
proclamations which have been made during the existing rebellion 
with reference to the emancipation of slaves, so help me, God.” 

The permission to take this oath was withheld from large classes 
of citizens. It will be seen that there are two stipulations in this 
oath, the first faithfully to support the Constitution of the United 



496 


Notes on Reconstruction Acts 


States and the Union thereunder. This comprises obedience to the 
laws made in conformity to the Constitution, and is all that is re¬ 
quisite in the simple oath of allegiance of an American citizen. The 
second stipulation is: 

“To abide by and ■ faithfully support all laws and proclamations 
which have been made during the existing rebellion with reference 
to the emancipation of slaves.” 

What need was there of this second stipulation? Because the laws 
were not enacted, nor the proclamation issued under any grant of 
power in the Constitution or under its authority. Now, the exercise of 
a power by a Government, for which it has no constitutional authority, 
is not only a usurpation, but it destroys the sanction of all written 
instruments of government. Also, what has become of the unalien¬ 
able right of property, which all the State governments were created 
to protect and preserve? Where was the sovereignty of the people 
under these proceedings? Yet the Confederate citizen was required to 
bind himself by an oath to abide by and fathfully support all these 
usurpations; the alternatives being to resist the Government, or to aid 
and abet a violation of the Constitution. 

Meanwhile, each of the late Confederate States was occupied by a 
military force of the Government of the United States, and military 
orders were the supreme law; and that Government thereby proceeded 
to establish a State organization based on the principle of its own 
sovereignty. Davis on The Rise and Fall of The Confederate Govern¬ 
ment, Vol. II, 718-19-20. 

In 1865 the Congress of the United States passed an act whch pro¬ 
vided that the following amendment to the Constitution should be 
submitted to the Legislatures of the several States for ratification: 

“Section 1. Neither slavery nor involuntary servitude, except as a 
punishment for crime, whereof the party shall have been duly con¬ 
victed, shall exist within the United States, or any place subject to its 
jurisdiction. 

“Section 2. Congress shall have full power to enforce this article 
by appropriate legislation.” 

One Dr. James L. Watson was tried for killing a negro in Rock¬ 
bridge County, Va., and acquitted. Major-General Schofield, in com¬ 
mand of the military forces of the department, immediately ordered his 
arrest and trial by the military commission. On the assembling of 
the commission a writ of habeas corpus was sued out of the Circuit 
Court of Richmond in behalf of Watson, and served on the General. In 
his answer, he declined compliance with the writ, stating: 

“Dr. Watson is held for trial by military commission, under the 
authority of the act of Congress of July 16, 1866, which act directs 
and requires the President, through the commissioner and officers of 
the Preedmen’s Bureau, to exercise military jurisdiction over all cases 
and questions concerning the free enjoyment of the right to have full 
and equal benefit of all laws and proceedings concerning personal 
liberty, personal security, etc., by all citizens, without respect to race 
or color, or previous condition of slavery, of the States whose con¬ 
stitutional relations to the Government of the United States have been 
discontinued by the rebellion, and have not been restored.” 


Notes on Reconstruction Acts 


497 


In the meantime, the United States Attorney-General having ex¬ 
amined the case, and reported that, in his opinion, the military com¬ 
mission had not competent jurisdiction, the President thereupon di¬ 
rected that the commission be dissolved and the prisoner discharged 
without delay. Davis on The Rise and Fall of The Confederate Gov¬ 
ernment, Yol. II, 725-6. 

A storm was now brewing which was soon to involve the President 
and Congress in open conflict. The reader will remember that, during 
the period in which these proceedings took place in Virginia, similar 
ones occurred in all the remaining Confederate States. Not only in 
Virginia, but in several of the other States, some persons had been 
voted for as members of Congress, but in no case had they been ad¬ 
mitted to seats. This was one of the measures taken by Congress to 
indicate its disapproval of the President’s plan for the treatment of 
the late Confederate States. 

The difficulties that now arose between the President and Congress 
had reference entirely to the affairs of the Confederate States. The 
plan of the President left the negroes to the care of the States alone 
after the establishment of their emancipation. Congress desired them 
to be made American citizens, secure for them all the rights of freemen 
and voters. The refusal to admit Senators and Representatives from 
the Confederate States served to arrest the operation of the Presi¬ 
dent’s plans to hold these States in abeyance. 

No compromise could be made between the two. Each appealed to 
the Constitution, forgetful that each had sustained all its ruthless 
violations during the last four years. Congress, therefore, commenced 
an independent action, and in its reckless course sought, unsuccess¬ 
fully, to rid itself of the President by impeachment. Its first act, at 
the commencement of the session, in December, 1865, was the appoint¬ 
ment, by a large majority, in each House, of a joint Committee of 
Fifteen, to which was referred all questions relating to the conditions 
and manner in which Congress would recognize the late Confederate 
States as members of the Union. Meantime the credentials of all per¬ 
sons sent as Representatives and Senators from them were laid upon 
the table in each House, there to remain until the final action of the 
Committee of Fifteen. This was followed by the passage, in February, 
1866, of “an act to establish a bureau for the relief of freemen, refu¬ 
gees, and abandoned lands.” It proposed to establish military juris¬ 
diction over all parts of the United States containing refugees and 
freedmen. This bill was vetoed by the President and passed over his 
veto. Dovis on The Rise and Fall of The Confederate Government, Yol. 
II, 726-7. 

On June 8, 1866, a majority and a minority report were made by the 
Committee of Fifteen. Meanwhile, a report had been made from the 
same committee, at a previous date, in the form of an amendment to 
the Constitution, which was debated and amended in each House, 
and finally passed by the requisite majority in each. Thus was to 
be secured the political support and votes of the negroes, who were 
expected to be the controlling citizens of the late Confederate States. 

The fourteenth amendment to the Constitution was now submitted 


498 


Notes on Reconstruction Acts 


to the Legislatures of all the States, to be valid as a part of the Con¬ 
stitution, when ratified by three fourths. Davis on The Rise and Fall 
of The Confederate Government, Vol. II, 727-8. 

It may here be stated that the restoration of the late Confederate 
States to all the rights and privileges of States as coequal members 
of the Union, under the plan of President Johnson, received the ap¬ 
proval of the executive and judicial branches of the Government soon 
after the cessation of hostilities. Congress, however, not only with¬ 
held its assent, but, during its session in 1866, required as a condition 
precedent to a recognition of any one of these States, and the admission 
of its Representatives and Senators to seats, the adoption by its Leg¬ 
islature of the above j mentioned amendment. The question really in¬ 
volved in this amendment was the admission to citizenship and the 
ballot of the negroes in these States. It was the acknowledged fact 
that the authority to determine this question resided in the States 
severally and nowhere else. The amendment itself, in its second sec¬ 
tion, recognized the authority to grant or withhold the elective fran¬ 
chise as existing in the State governments. 

This amendment was submitted to the Legislatures of the States 
immediately after its adoption by Congress in June, 1866, and by 
March 30, 1867, it had been ratified by twenty States, including West 
Virginia, Maryland, Missouri and Tennessee, and rejected by thirteen, 
including Delaware and Kentucky, and eleven of the late Confederate 
States. There were thirty-four States at that time, and thirty had 
voted. A ratification by three-fourths was required to make it valid. 

When this amendment was presented for ratification to the Legisla¬ 
ture of Virginia at its session commencing December, 1866, it was re¬ 
jected in the Senate by a unanimous vote, and in the House by a vote 
of seventy-four to one. Meanwhile the Freedmen’s Bureau was or¬ 
ganized and put in operation in the State, but the military occupation 
continued, and the condition of affairs remained unchanged during the 
proceedings of Congress to construct its plan for subjugation. 

After the vote of the State up to March, 1867, it was manifest that 
no real advance had been made in the extension of the franchise to the 
negro population of the States. In this position of affairs Congress, 
on March 2d, adopted an entirely new system of measures relative to 
the late Confederate States. The fiction upon which these measures 
were based is thus expressed in the preamble of the first act: 

“Whereas, no legal State governments, or adequate protection for 
life or property, now exists in the rebel States of Virginia, North Caro¬ 
lina, South Carolina, Georgia, Alabama, Mississippi, Louisiana, Florida, 
Texas and Arkansas; and, whereas, it is necessary that peace and good 
order should be enforced in said States, until loyal republican State 
governments can be legally established: therefore, be it enacted,” etc. 

These States were then divided into five military districts, and it 
was further provided: 

Until the people of the said rebel States shall by law be admitted 
to representation to the Congress of the United States, all civil gov¬ 
ernments that may exist therein shall be deemed provisional only, and 
shall be in all respects subject to the paramount authority of the 
United States, at any time to abolish, modify, control, and supersede 
the same, and in all elections to any office under such provisional gov- 


Notes on Reconstruction Acts 


499 


ernments, all persons shall be entitled to vote under the provisions of 
the fifth section of this act.” Davis on The Rise and Fall of The Con¬ 
federate Government, Vol. II, 730. 

The President vetoed the bill, and in his message said: 

“Thus, over all these ten States, this military government is now 
declared to have unlimited authority. It is no longer confined to the 
preservation of the public peace, the administration of criminal law, 
the registration of voters, and the superintendence of elections; but, 
‘in all respects,’ is asserted to be paramount to the existing civil gov¬ 
ernments. It is impossible to conceive any state of society more intol¬ 
erable than this, and yet it is to this condition that twelve millions of 
American citizens are reduced by the Congress of the United States. 
Over every foot of the immense territory occupied by these American 
citizens, the Constitution of the United States is theoretically in full 
operation. It binds all the people there, and should protect them; yet 
they are denied every one of its sacred guarantees. Of what avail will 
it be to any one of these Southern people, when seized by a file of 
soldiers, to ask for the cause of the arrest, or for the production of the 
warrant? Of what avail to ask for the privilege of bail when in mil¬ 
itary custody, which knows no such thing as bail? Of what avail to 
demand a trial by jury process, for witnesses, a copy of the indictment, 
the privilege of counsel, or that greater privilege, the writ of habeas 
corpus ?” Davis on The Rise and Fall of The Confederate Government, 
Vol. II, 732-3. 

Reconstruction conventions were assembled under military au¬ 
thority in Virginia: 

The Convention assembled on December 3d and adjourned on April 
17, 1868. The Bill of Rights adopted declared that— 

“The State shall ever remain a member of the United States of 
America, and the people thereof a part of the American nation, and all 
attempts, from whatever source, and upon whatever pretext, to dissolve 
the Union, or to sever said Union, are unauthorized, and ought to be 
resisted with the whole power of the States. 

“The Constitution of the United States, and the laws of Congress 
passed in pursuance thereof, constitute the supreme law of the land, to 
which paramount allegiance and obedience are due from every citizen, 
anything in the Constitution, ordinances, or laws of any States to the 
contrary. notwithstanding.” 

Suffrage was granted to every male citizen twenty-one years of age. 
All officers of the State were required to take the following oath: 

“I,.. do solemnly swear that I will support and maintain 

the Constitution of the United States and the Constitution and laws of 
the State of Virginia; and that I recognize and accept the civil and 
political equality of all men before the law,” etc. 

In addition, all State, city and county officers were required to 
take the test-oath prescribed by Congress on July 2, 1862, as follows: 

“I do solemnly swear that I have never borne arms against the 
United States since I have been a citizen thereof; that I have volun¬ 
tarily given no aid, countenance, counsel, or encouragement to persons 
engaged in armed hostility thereto; that I have never sought or ac¬ 
cepted, nor attempted to exercise the functions of any office whatever, 
under any authority, or pretended authority, in hostility to the United 



500 


Notes on Reconstruction Acts 


States; that I have not yielded a voluntary support to any pretended 
government, authority, power, or Constitution within the United States, 
hostile or inimical thereto; and I do further swear that, to the best of 
my knowledge and ability, I will support and defend the Constitution 
of the United States against all enemies, foreign and domestic; that I 
will bear true faith and allegiance to the same; that I will take this 
obligation freely, without any mental reservation or purpose of evasion; 
and that I will well and faithfully discharge the duties of the office on 
which I am about to enter.” 

Major-General Schofield, in an address to the Convention in oppo¬ 
sition to these stringent provisions, said: 

“You can not find in some of the counties a sufficient number of 
men who are capable of filling the offices, and who can take the oath 
you have prescribed here; I have no hesitation in saying that I believe 
it impossible to inaugurate a government upon that basis.” 

Meantime the so-called Constitution was adopted by the Convention, 
and June 2d fixed for the popular vote upon it. But no appropriation 
was made for the expenses of the election, and it was not held. Davis 
on The Rise and Fall of The Confederate Government, Vol. II, 734-5-6. 

The fifteenth article of amendment to the Constitution was passed 
by Congress in February, 1869, and submited to the Legislatures of the 
States. It was as follows: 

“Section 1. The right of citizens of the United States to vote shall 
not be denied or abridged by the United States, or by any State, on 
account of race, color, or previous condition of servitude. 

“Section 2. The Congress shall have power to enforce this article 
by appropriate legislation.” 

On the passage of the amendment by the United States Senate, Sen¬ 
ator Garett Davis, of Kentucky, said: 

“Sir, your amendments to the Constitution are all void; they are of 
no effect. They were proposed by a mutilated Congress; they were 
proposed by a mutilated House of Representatives and Senate.” Davis 
on The Rise and Fall of The Confederate Government, Vol. II, 736. 

The election in Virginia took place on July 6, 1869. The vote on the 
Constitution was, for it, 206,233; against it, 9,189. For the disfran¬ 
chising clause, 84,404; against it, 124,361. In favor of the test-oath 
clause, the votes were, 83,114; against it, 124,106. State officers and a 
Legislature were chosen. 

Meantime the civil or provisional Governor had been removed by 
the military commander, Major-General Stoneman, and the commander 
of the first district put in the vacancy. At the same time the President- 
Judge of the Supreme Court of Appeals was a staff-officer of the Gen¬ 
eral commanding, and assigned to duty; and another one of the judges 
of that court was an officer of the Federal army, receiving his appoint¬ 
ment from the same source. 

On October 5th the Legislature assembled, the State officers-elect 
having already entered upon their duties. The fourteenth and fifteenth 
amendments to the United States Constitution were adopted, and Sen¬ 
ators elected to Congress. On January 26, 1870, a bill for the admission 
of the State into the Union, “without further condition,” was passed. 


Notes on Reconstruction Acts 


501 


Her subjection was now completed. The military commanders were 
withdrawn and she was left in the hands of “carpet-baggers.” Davis 
on The Rise and Fall of The Confederate Government, Vol. II, 737. 

The State officers for North Carolina elected under the plan of 
President Johnson had continued in the peaceful administration of their 
duties. Therefore, on the day of the inauguration of the newly-elected 
Governor (Holden), the existing Governor (Worth) made a spirited 
protest, saying: 

“I do not recognize the validity of the late election, under which 
you and these co-operating with you claim to be invested with the 
civil government of the State. You have no evidence of your election, 
save the certificate of a major-general of the United States Army, I 
regard all of you as, in effect, appointees of the military power of the 
United States, and not as deriving your powers from the consent of 
those you claim to govern. Knowing, however, that you are backed 
by military force here, which I could not resist if I would, I do not 
deem it necessary to offer a futile opposition, but vacate the office 
without the ceremony of actual eviction, offer no further opposition 
than this, my protest.” Davis on The Rise and Fall of The Confederate 
Government, Vol. II 839-40. 

In South Carolina, proceedings w.ere commenced on June 20, 1865, 
when President Johnson issued a proclamation similar to the one in the 
case of Virginia, and appointed Benjamin F. Perry as provisional Gov¬ 
ernor of the State. He continued all persons in office on taking the 
amnesty oath, and all laws in force prior to the secession of the State 
were maintained except those conflicting with the proclamation; del¬ 
egates to a so-called State Convention were elected on the first Monday 
of September, and the Convention assembled on the 13th to amend the 
State Constitution. The ordinance of secession was repealed and 
slavery abolished. Blacks were made witnesses in all cases where the 
rights or property of persons of that class were involved. An election 
of State officers and a so-called Legislature were held. The latter con¬ 
vened on October 25th. The thirteenth amendment to the Constitu¬ 
tion of the United States prohibiting slavery was ratified. On Novem¬ 
ber 29th the provisional Governor retired, and the so-called Governor- 
elect (Orr) was inaugurated. The work of the Legislature was very 
complete. Davis on The Rise and Fall of The Confederate Government , 
Vol. II, 740-1. 

In Georgia, on the cessation of hostilities, the Governor issued a 
proclamation calling a session of the Legislature. But the command¬ 
ing General issued an order declaring the proclamation to be null and 
void. Another military officer, in a letter to the Governor, stated that 
he was instructed by the President to say to him, that “the persons 
who incited the war and carried it on will not be allowed to assemble 
at the call of their accomplice to act again as the Legislature of the 
State, and again usurp the authority and franchises. In calling the 
Legislature together again, without the permission of the President, 
you have perpetrated a fresh crime; and, if any person presumes to 
answer or acknowledge your call, he will be immediately arrested.” 
The military authorities of the United States then took the control of 
affairs until the appointment of James Johnson, on June 17th, by the 


502 


Notes on Reconstruction Acts 


President, as provisional Governor of the State, by a proclamation sim¬ 
ilar to the one issued in the case of Virginia. On July 13th he issued 
a proclamation prescribing the regulations for a State Convention. 
Provost-marshals had been stationed all over the State to regulate local 
affairs, and the laws in force previous to 1861 were ordered to be en¬ 
forced. Delegates were elected on October 4th, and the so-called State 
Convention assembled on October 25th. The ordinance of secession was 
repealed. The payment of the war debt was prohibited. The emanci¬ 
pation of the slaves were expressly recognized, and a so-called election 
for State officers, members of the Legislature and of Congress, was ap¬ 
pointed to be held on November 15th. The Legislature assembled on 
December 4th, and unanimously adopted the thirteenth amendment"T;o 
the Federal Constitution, prohibiting the existence of slavery. Charles 
J. Jenkins, Governor-elect, was inaugurated, and on December 19, 
1865, the provisional Governor relinquished the conduct of the State 
affairs to the constituted authorities. The Freedmen’s Bureau Act and 
the Civil Rights Act of Congress were enforced by the military au¬ 
thorities. Davis on The Rise and Fall of The Confederate Government, 
Vol. II, 745-6. 

The so-called election on the Constitution, and for State officers, and 
Legislature, and members of Congress, was held on April 20th and 
following days: The State Constitution was declared to be ratified; 
Rufus W. Bullock, the so-called Republican candidate, was declared to 
be elected Governor by a majority of seven thousand votes. The Leg¬ 
islature assembled on July 4, 1868, with three Senators and twenty- 
five Representatives who were negroes. The fourteenth amendment to 
the Federal Constitution was adopted, and all the condition of Congress 
were fulfilled; and on July 28, 1868, she was declared to be restored to 
the Union. Subsequently it appeared that the State Convention had 
made no provision which could be construed as expressly giving the 
black man a right to hold office, and all these members expelled from 
the Legislature. The matter was taken up by Congress, and the State 
was not fully recognized as in the Union until 1870. Davis on The 
Rise and Fall of The Confederate Government, Vol. II, 748. 

In Alabama the proclamation of President Johnson was issued on 
June 21, 1865, by which Lewis E. Parsons was appointed provisional 
Governor and the usual proceedings prescribed. On July 20th the 
Governor issued a proclamation, which renewed the powers of the per¬ 
sons holding the township offices in the State; called a State Constitu¬ 
tional Convention to assemble on September 10th, and reordained the 
civil and criminal laws, except those relating to slaves, as they existed 
previous to 1861, and prescribed other regulations. A peaceful elec¬ 
tion was held, and the delegates to the so-called Convention assembled 
and took an oath to support the Constitution of the United States and 
the Union thereof, and all proclamations relative to the emancipation 
of slaves. Slavery was prohibited, the war debt declared void, and the 
secession ordinance repealed. An election for State officers, members 
of the Legislature, and Representatives in Congress, was ordered on 
the first Monday of November. The new Constitution was not submitted 
to a vote of the people on account of the delay it would occasion. 
Robert M. Patton was elected Governor, and the Legislature assembled 


Notes on Reconstruction Acts 


503 


on November 20th. The amendment to the Constitution of the United 
States prohibiting the existence of slavery was ratified, and on De¬ 
cember 18, 1865, the provisional Governor surrendered the conduct of 
the affairs of the State to the Governor-elect. 

During the existence of the Confederate Government, the Protestant 
Episcopal Church South was established, and the prayer for the Presi¬ 
dent of the United States and all in civil authority, in the “Book of 
Common Prayer,” was changed to one for the Confederate authorities. 
Upon the restoration of the authority of the United States, the prayer 
for the President was omitted altogether, by the recommendation of 
Bishop Wilmer; whereupon Major-General Woods issued an order by 
which the Bishop and all his clergy in the diocese of Alabama “were 
suspended from their functions and forbidden to preach or perform 
divine service.” The order was subsequently set aside by President 
Johnson. Davis on The Rise and Fall of The Confederate Government, 
Vol. II, 750. 

Mississippi, immediately after the cessation of hostilities, was 
occupied by a military force of the United States. Meantime, the 
Governor called an extra session of the Legislature, and made provision 
for a Constitutional Convention; but these measures were set aside by 
the proclamation of President Johnson, on June 13th, appointing Will¬ 
iam L. Sharkey provisional Governor. The system of measures em¬ 
braced in the plan of the President for the restoration of the Con¬ 
federate States to the Union was immediately commenced and com¬ 
pleted in the election of Benjamin G. Humphreys for Governor, with 
the other State officers, members of the Legislature, and Representa¬ 
tives in Congress. 

The fourteenth amendment of the Constitution was unanimously 
rejected by the Legislature in January, 1867. 

Under the act of Congress of March 2, 1867, Major-General Ord 
assumed command of the Fourth Military Division, consisting of Miss¬ 
issippi and Arkansas. Governor Humphreys sought immediately to 
bring the question of the constitutionality of this act before the United 
States Supreme Court. Arguments were heard upon it by the Court. 
The motion was to enjoin and restrain President Johnson and Major- 
General Ord from executing the act and supplements. It was denied, 
and Chief-Justice Chase, on delivering the opinion, said: 

“If the President refuses obedience, it is needless to observe that 
the Court is without power to enforce its process. If, on the other 
hand, the President complies with the order of the Court, and refuses 
to execute the act of Congress, is it not clear that a collision may 
occur between the executive and legislative departments of the Gov¬ 
ernment? May not the House of Representatives impeach the Presi¬ 
dent for such refusal?” 

Major-General Ord, immediately after assuming command, pro¬ 
ceeded to organize boards for the registration of voters and prescribe 
their qualifications and disqualifications. The latter were so numerous 
as to embrace, in all these States, every white who had voluntarily 
done the most simple act to aid or favor any person engaged in the 
Confederate service, or had incited, by words, others to render such 
aid, while the entire class of blacks were not disqualified by such acts,. 


504 


Notes on Reconstruction Acts 


as it was assumed that they were done by compulsion. Thus the aim 
and end of registration, after this manner, in a State, were to throw 
the entire political power into the hands of the negroes. 

Orders were now issued directing the military to co-operate with the 
civil officers to break up the crime of horse-stealing, to secure to labor 
its share of the crops, and to protect debtor and creditor from sacrifices 
by forced sales; to suspend for a time certain sales under execution; 
to prohibit Interference with the legal tenant; to ascertain if distillers 
had paid their taxes; to investigate complaints made by citizens of 
persecution by civil authorities; to notify State and municipal officers 
of the laws of Congress for the organization of their governments on 
the basis of suffrage without regard to color; to subordinates of the 
Freedmen’s Bureau to investigate all charges against landholders; to 
require supervisors, inspectors, and boards of registration to obtain the 
names of suitable persons, white or black, to act as clerks and judges 
of elections; to close strictly all bar-rooms and saloons for the day 
when political meetings were held; to remove the city marshal, three 
justices of the peace, and four members of the City Council of Vicks¬ 
burg; to appoint other persons to fill vacancies, who were required to 
take the test oath of Congress; to forbid the assembling of bodies of 
citizens under any pretense; to transfer the papers to a military com¬ 
mission whenever a person who had been in the Federal service was 
indicted and apprehended an unfair trial; to notify overseers of the 
poor that any neglect to provide for colored paupers would be re¬ 
garded as a neglect of duty, etc. Davis on The Rise and Fall of The 
Confederate Government, Vol. II, 752-3-4. 

The power usurped by Congress was without h limitation, and ex¬ 
tended to all the political, civil, and social relations. Many of the 
military commanders seem to have regarded their authority as equally 
comprehensive. The Attorney-General of the United States, in his 
official opinion on these acts of Congress, addressed to the President, 
on June 12, 1867, says: 

“It appears that some'of the military commanders have understood 
this grant of power as all-comprehensive, conferring on them the 
power to remove the executive and judicial officers of the State, and to 
appoint other officers in their places; to suspend the legislative power 
of the State; to take under their control, by officers appointed by 
themselves, the collection and disbursement of the revenues of the 
State; to prohibit the execution of the laws of the State by the agency 
of its appointed officers and agents; to change the existing laws in 
matters affecting purely civil and private rights; to suspend or enjoin 
the execution of the judgments and decrees of the established State 
courts; to interfere in the ordinary administration of justice in the 
State courts, by prescribing new qualifications for jurors; and to 
change, upon the ground of expediency, the existing relations of the 
parties to contracts, giving protection to one party by violating the 
rights of the other party.” Davis on The Rise and Fall of The Con¬ 
federate Government , Vol. II, 758. 

In Louisiana, on January 4, 1875, a body of troops of the Govern¬ 
ment of the United States, on the order of Governor W. P. Kellogg, 
marched into the hall of the House of Representatives of the State 
Legislature, while that body was in session, and forcibly seized and 


Notes on Reconstruction Acts 


505 


took out five members as not entitled to seats. The General in com¬ 
mand (De Trobriand) then proceeded to eject the Clerk, and arrested 
the proceedings of the House. When expostulated with by the 
Speaker, he replied: “I am but a soldier. These are my orders.” The 
members then retired. 

In Mississippi, on December 7, 1874, a serious conflict occurred in 
Vicksburg between whites and blacks, which resulted in great loss of 
life and caused a widely-spread alarm. It grew out of frauds com¬ 
mitted by public officers. 

Again, during the exciting contest in Arkansas, the Congress of the 
United States appointed a committee to investigate the affairs in that 
State, and “whether said State had now a government republican in 
form, the officers of which are duly elected, and, as now organized, 
ought to be recognized by the Government of the United States.” 

On December 24, 1874, the Congress of the United States appointed 
a committee to proceed to New Orleans, and investigate the state of 
affairs in Louisiana. This committee reported on January 14, 1875, 
that “they could not agree upon any recommendation; but, upon the 
situation in Louisiana, as it appeared before us, we are all agreed.” 
Davis on The Rise and Fall of The Confederate Government, Vol. II, 
7 61. 

Inalienable rights are unknown to this war-begotten theory of the 
Constitution. The day has come in which mankind behold this Gov¬ 
ernment founding its highest claims to greatness and glory upon deeds 
done in utter violation of those rights which belonged to its own cit¬ 
izens in every State, North and South. The palladium of the freeman, 
the Bills of Rights, the limitations of power, the written Constitutions, 
have all lost their sacred authority, and not a man or a State dare, 
single-handed, gainsay the will of the agency which, feeling power, has 
forgotten right. It has put its hands on the ballot-box, and the dec¬ 
laration is made that it is not safe to trust the people to vote, except 
under the inspection of its authority, after the example set by the 
Roman emperors. When the cause was lost, what cause was it? Not 
that of the South only, but the cause of constitutional government, of 
the supremacy of law, of the natural rights of man. Davis on The 
Rise and Fall of The Confederate Government, Vol. II, 763. 


STATE GOVERNMENT 

“What Constitutes a State?” 

The great sentiment of Alcaeus, so beautifully presented to us by 
Sir William Jones, is absolutely indispensable to the construction and 
maintenance of our political systems: 

“What constitutes a State? 

Not high-raised battlement or labored mound, 

Thick wall or moated gate; 

Not cities proud, with spires and turrets crowned; 

Not bays and broad-armed ports, 

Where, laughing at the storm, rich navies ride; 

Not starred and spangled courts, 

Where low-browed baseness wafts perfume to pride. 

No: Men, high-minded Men, 

With powers as far above dull brutes endued, 

In forest, brake, or den, 

As beasts excel cold rocks and brambles rude: 

Men who their duties know, 

But know their rights, and, knowing, dare maintain; 

Prevent the long-aimed blow, 

And crush the tyrant while they rend the chain: 

These constitute a state; 

AND SOVEREIGN LAW, that state’s collected will, 

O’er thrones and globes elate 

Sits empress, crowning good, repressing ill.” 

2 Webster's Works, (1th ed.), p. 602. 

“State” and “States” Defined 

A State in the sense used in American Constitutions is one 
of the Commonwealths of the American Union or Federation 
of States. In some respects, states are not sovereign in the 
sense that they are nations with powers to deal with other 
nations. This power they granted to the Federal Government. 
They are soverign however, in that they have their own Con¬ 
stitutions and own governments as to their own citizens and 
property therein, so far as all local and intra-state matters 
and questions are concerned. In fact, each possesses all the 
powers of government except those conferred on the Federal 
Government by the States or the people thereof, and those 
which the people who made the government, reserved for them¬ 
selves, and their descendants and survivors. The people of 
the respective States first created the State, and then the 
States, or the people thereof, created the Federal Government. 
Both governments or the compound thereof was created by the 
people, and both together do not possess all governmental 
power, such as is possessed by absolute monarchies. 


506 


“State” and “States' Defined 


507 


Judge Cooley, in the opening paragraph of his valuable work 
on Constitutional Limitations, thus defines “ State”: 

A State is a body politic, or society of men, united together for the 
purpose of promoting their mutual safety and advantage by the joint 
efforts of their combined strength. The terms nation and State are 
frequently employed, not only in the law of nations, but in common 
parlance, as importing the same thing; but the term nation is more 
strictly synonymous with people, and while a single State may embrace 
different nations of peoples, a single nation will sometimes be so 
divided politically as to constitute several States. 

“In American constitutional law the word State is applied to the 
several members of the American Union, while the word nation is 
applied to the whole body of the people embraced within the jurisdic¬ 
tion of the Federal Government. Cooley on Constitutional Li/mitar 
tions, 1. 

The term “States” as used in the Constitution is defined by 
the Supreme Court of the United States, in the case of Texas v. 
White, 7 Wall. 700. 

Mr. Black thus describes the “States”: 

In American constitutional law the word “State” is generally em¬ 
ployed to denote one of the component commonwealths of the Amer¬ 
ican Union. These states, as will presently appear, are not sovereign. 
Neither are they nations, in any proper sense of the term. They are 
political communities, occupying separate territories, and possessing 
powers of selUgovernment in respect to almost all matters of local 
interest and concern. Each, moreover, has its own constitution and 
laws and its own government, and enjoys a limited and qualified in¬ 
dependence. Black on Constitutional Laws, 20. 

The several states composing the American Union never enjoyed 
complete sovereignty as regards the external side, and do not now pos¬ 
sess it. This is shown by the fact that they were always subject to 
some common superior in respect to their relations with foreign 
powers. First it was the king and parliament of England, then the 
revolutionary congress, then the confederation, and now the United 
States. For as all authority over foreign relations and affairs is con¬ 
fided to the national government, it follows as a necessary conse¬ 
quence that all such authority is denied to the separate states. None 
of them can deal directly with a foreign nation. “The only govern¬ 
ment of this country which other nations recognize or treat with is 
the government of the Union, and the only American flag known 
throughout the world is the flag of the United States.” Black on Con¬ 
stitutional Laws, 22. 

Condition of States Prior to the Constitution 

During their colonial condition, they formed distinct communities—- 
each with its separate charter and government—and in no way con¬ 
nected with each other, except as dependent members of a common 
empire. Their first union amongst themselves was, in resistance to the 
encroachments of the parent country on their chartered rights—when 


508 


State Government, Powers and Usurpations of 


they adopted the title of, “the United Colonies.” Under that name 
they acted, until they declared their independence; always, in their 
joint councils, voting and acting as separate and distinct communi¬ 
ties; and not in the aggregate, as composing one community or nation. 
They acted in the same character in declaring independence; by 
which act they passed from their dependent, colonial condition, into 
that of free and sovereign States. 1 Calhoun's Works, pp. 123-12 L 

Duty As to Usurpations of State Powers 

The following is taken from Madison's address to the Legis¬ 
lature of Virginia, and to the people of that State, in 1798: 

It would be perfidious in those entrusted with the guardianship of 
the State sovereignty, and acting under the solemn obligation of the 
following oath, “I do swear that I will support the Constitution of the 
United States,” not to warn you of encroachments, which, though 
clothed with the pretext of necessity, or disguised by arguments of ex¬ 
pediency, may yet establish precedents which may ultimately devote 
a generous and unsuspicious people to all the consequences of usurped 
power. 

Encroachments springing from a government whose organization 
can not be maintained without the co-operation of the States, furnish 
the strongest excitements upon the State Legislatures to watchfulness, 
and impose upon them the strongest obligation to preserve unimpaired 
the line of partition. 

The acquiescence of the States under infractions of the federal 
compact, would either beget a speedy consolidation, by precipitating the 
State governments into impotency and contempt; or prepare the way 
for a revolution, by a repetition of these infractions, until the people are 
aroused to appear in the majesty of their strength. It is to avoid 
these calamities that we exhibit to the people the momentous question, 
whether the Constitution of the United States shall yield to a construc¬ 
tion which defies every restraint and overwhelms the best hopes of 
republicanism. 

Exhortations to disregard domestic usurpation, until foreign danger 
shall have passed, is an artifice which may be forever used; because 
the possessors of power, who are the advocates for its extension, can 
ever create national embarrassments, to be successively employed to 
soothe the people into sleep, whilst that power is swelling, silently, 
secretly, and fatally. Of the same character are insinuations of a for¬ 
eign influence, which seize upon a laudable enthusiasm against danger 
from abroad, and distort it by an unnatural application, so as to bind 
your eyes against danger at home. 4 Writings of Madison, p. 509. 

Organization and Government of the State Legislature 

By constitutional provisions in the several states, or by common 
parliamentary law, the state legislature has the power— 

(a) To make rules for its own government and for the regulation 
of its legislative proceedings. 

(b) To choose its own officers in each house. 

(c) To exercise an exclusive right of determination upon the elec¬ 
tion and qualification of its own members. 


State Government, Division of Powers 509 

(d) To control and discipline its members, for disorderly or con¬ 
temptuous behavior, even to the extent of expelling them. 

(e) To appoint committees and define their powers, and authorize 
them to send for persons and papers in the course of their investiga¬ 
tions. 

(f) To punish persons who may be guilty of contempts against it 
or breaches of its privileges. 

(g) To secure uninterrupted service of all its members on the 
public business, by the exemption of each member from arrest on civil 
process while engaged in parliamentary duties or while going to or 
returning from the seat of government. 

(h) To keep, in each house, a journal of its proceedings, the pub¬ 
lication and amendment of which are within its power and discretion. 
Black, on Constitutional Law, 291-2. 

Legislative Powers of the State 

The legislative powers of the States as vested in the House 
of Representatives and the Senate are very much after the or¬ 
der of Congress. In fact, the legislative power vested in Con¬ 
gress by the Federal Constitution was largely patterned after 
the legislatures of the existing States. The division of govern¬ 
mental powers is practically the same in both the State and 
Federal Governments. 

The rightful power of the legislature of a state extends to every 
subject of legislation, unless, in the particular instance, its exercise 
is forbidden, expressly or by necessary implication, by the constitution 
of the United States, a treaty, an act of congress, or the constitution of 
the state. Black on Constitutional Laic, 300. 

Powers of Governor of the State 

The powers and duties of a state governor are ordinarily as follows: 

(a) He is to take care that the laws of the state are faithfully 
executed. 

(b) He is to inform the legislature of the condition of the state, 
and to recommend such measures of legislation as he deems necessary 
or important. 

(c) He may require information from the different oflicers of the 
executive department upon subjects relating to the duties of respective 
offices. 

(d) He has the power of appointing certain of the officers of the 
state, and of removing officers for cause. 

(e) He is commander in chief of the militia of the State. 

(f) He has the power to grant pardons for offenses against the 
State, and reprieves. 

(g) He has the power to convene the legislature in special session, 
and to adjourn them in certain cases. 

(h) He has the power to veto bills passed by the legislature. Black 
on Constitutional Law, 271. 


510 


State Government, Division of Powers 


Executive Officers of the State 

The executive power in each of the states and territories is lodged 
in a chief magistrate, who is called the “governor.” 

In most of the states, there is a second executive officer, called 
“lieutenant governor,” who is to succeed the governor in his office in 
case of death, resignation, removal, or disability of the latter. 

The subordinate officers of a State government, after the governor 
and lieutenant governor, are ordinarily as follows: 

(a) The secretary of State. 

(b) The State treasurer. 

(c) The State comptroller. 

(d) The State auditor. 

(e) The attorney general. 

(f) The superintendent of public instruction. Black on Constitu¬ 
tional Laic, 267. 

Judicial Powers of the State 

The judicial power of each State is vested in a system of courts, 
comprising, generally, three classes— 

(a) A court of last resort, possessing supreme appellate juris¬ 
diction. 

(b) A number of courts of equal and co-ordinate authority, each 
within its territorial limits, possessing general original jurisdiction, 
civil and criminal. 

(c) Inferior courts, held by justices of the peace or police magis¬ 
trates, possessing jurisdiction of minor civil causes and petty criminal 
offenses. Black's Constitutional Law, 280. 

Relation of States to Each Other and to the United States 

The United States is given the power to enforce judgments 
of one state against another. This sub jet is fully discussed 
and decided in the recent case of Ya. v. W. Va., 38 Sup. Ct. 
Rept. p. 400, May 15, 1918. 

State and Federal Governments Compared 

Both derive their powers from the people, the body politic. 
The people first granted the powers to the State sovereignties; 
and then the states, by and with the consent of their respective 
people, granted some of those powers to the Federal Govern¬ 
ment; some of these powers granted were in turn prohibited 
to the states; some of the powers granted were to be exercised 
by both, the states within their respective territories, and the 
federal within its jurisdiction. The states may exercise some 
powers, though they were granted to the Federal Government, 
if the Federal Government has not attempted to exercise the 
power so granted, but'when the Federal Government does at¬ 
tempt to exercise them, the right of the State to exercise them 


State Government, Character and Nature of Powers 511 

ceases. All powers not granted to the Federal Government 
were reserved to the states, or to the people. There are some 
rights and powers, which the people reserved nnto themselves, 
and never granted to either government; these are called in¬ 
alienable rights of the citizens; some of which are enumerated 
in the bills of right. Some of the rights originally granted to 
the states, and not expressly thereafter granted to the Federal 
Government, are expressly in the Federal Constitution prohib¬ 
ited to the states, and thus impliedly granted to the Federal 
Government. The Federal Government therefore has no powers 
except those granted expressly or impliedly, while the State 
has all which were not so granted by the Federal Constitution, 
or thereby prohibited to the states, or were not originally re¬ 
served by the people to themselves. 

The people themselves, that is, the body politic thereof, is 
the only real sovereign; the State and Federal Governments are 
merely sovereigns as to the powers granted. The magistrates 
or officers of both are mere agents of the people, and trustees of 
the government whose powers they execute. 

As a general rule, governments are unlimited in their powers. All 
free governments, perhaps all other governments, are entitled in some 
shape or other, to make laws, and to repeal, or amend them. This is 
called the legislative power of the government. There are, however, 
in the United States, two sets of governments, both occupying a part 
of the domain of the great functions of governments, including the 
executive, the legislative, and the judicial powers. Miller's Const, p. 
575. 

Mr. Jefferson was in favor of national power as to interna¬ 
tional affairs. In 1786 he wrote Mr. Madison: 

It should ever be held in mind, that insult and war are the conse¬ 
quences of a want of respectability in the national character. As long 
as the States exercise, separately, those acts of power which respect 
foreign nations, so long will there continue to be irregularities com¬ 
mitted by some one or other of them, which will constantly keep us on 
an ill footing with foreign nations. 5 Jefferson's Writings (mem. ed.) 
p. 278. 

In a letter to General Washington, August 14th, 1787, he 
wrote: 

I remain in hopes of great and good effects from the decision of the 
Assembly over which you are presiding. To make our states one as to 
all foreign concerns, preserve them several as to all merely domestic, 
to give to the federal head some peaceable mode of enforcing its just 
authority, to organize that head into legislative, executive, and judiciary 
departments, are great desiderata in our federal constitution. 6 Jeffer¬ 
son's Writings, (mem. ed.), p. 275. 


512 


State Government, Relations to Federal 


In writing to Mr. Wythe, September 16, 1787, Mr. Jefferson 
in answering questions propounded as to the Constitution pro¬ 
posed, said: 

You ask me in your letter, what ameliorations I think necessary 
in our federal constitution. It is now too late to answer the question, 
and it would always have been presumption in me to have done it. 
Your own ideas, and those of the great characters who were to be con¬ 
cerned with you in these discussions, will give the law, as they ought to 
do, to us all. My own general idea was, that the States should severally 
preserve their sovereignty in whatever concerns themselves alone, and 
that whatever may concern another State, or any foreign nation, should 
be made a part of the federal sovereignty; that the exercise of the 
federal sovereignty should be divided among three several bodies, legis¬ 
lative, executive, and judiciary, as the State sovereignties are; and 
that some peaceable means should be contrived, for the federal head 
to force compliance on the part of the States. 6 Jefferson’s Writings 
(mem. ed.), pp. 299-300. 

The State government or its Legislature, can declare any act of an 
individual an offense or crime, which is by the Legislature declared 
detrimental to the public good, and can prescribe a punishment there¬ 
for; while the Federal Government acting through Congress, can only 
punish offenses against the few powers it exercises, such as the mails, 
commerce, coining money, and as for counterfeiting coins or its cur¬ 
rency or bonds. 

Both governments can levy taxes, but the purposes for which either 
can levy is for public purposes only; the Constitution, State and Fed¬ 
eral imposes limitations upon both; the State may impose for any 
public purpose not prohibited, while Congress can levy only for the 
purposes authorized. Miller's Const, p. 104. 

Congress can not prohibit a trade which is wholly within a State, 
such is strictly a State police regulation. 9 Wall, 41- 

States Not Antagonistic to Federal Government 

Mr. Calhoun said: 

It was a great mistake to suppose that the states would naturally 
stand in antagonistic relations to the Federal Government; or that 
there would be any disposition on their part to diminish its power or 
to weaken its influence. They naturally stand in a reverse relation— 
pledged to cherish, uphold, and support it. They freely and voluntarily 
created it, for the common good of each and of all—and will cherish 
and defend it so long as it fulfills those objects. If its safe-keeping can 
not be intrusted to its creators, it can be safely placed in the custody 
of no other hands. 1 Calhoun's Works, p. 312. 

Conflict Between State and Federal Laws 

Acts of Congress passed in pursuance of the Constitution are also 
the “supreme law of the land.” Hence any act of Congress which is 
valid and constitutional is supreme as against any law of a State which 
conflicts with it. When a State statute and a Federal statute operate 


State Government, Relations to Federal 


513 


upon the same subject-matter, and prescribe different rules concerning 
it, and the Federal statute is one within the competency of Congress 
to enact, the State statute must give way; it is in effect no law, but an 
abortive attempt to exercise a power not possessed by the State Leg¬ 
islature. Such is the effect when a conflict is found to arise between a 
State statute and the act of Congress called the “interstate commerce 
law.” So also, when Congress exercises its power to enact a bank¬ 
ruptcy law, that law becomes the supreme law of the land, and super¬ 
sedes all State legislation dealing with the subject of insolvency. And 
again, the patent laws of the United States are supreme as against all 
State laws the enforcement of which would be inconsistent with the 
rights acquired under the Federal Legislation. Columbia Wire Co. v. 
Freeman Wire Co., 71 Fed. 302. Black on Constitutional Laws, S3. 

Relation of the States to the General Government 

Mr. Calhoun’s school of statesmen, asserted the following as 
the relation the States have to the General government, and 
it is thus stated by Mr. Calhoun: 

The great and leading principle is, that the General Government 
emanated from the people of the several States, forming distinct polit¬ 
ical communities, and acting in their separate and sovereign capacity, 
and not from all of the people forming one aggregate political com¬ 
munity; that the Constitution of the United States is, in fact, a com¬ 
pact, to which each State is a party, in the character already de¬ 
scribed, and that the several States, or parties, have a right to judge 
of its infractions; and in case of a deliberate, palpable, and dangerous 
exercise of power not delegated, they have the right, in the last resort, 
to use the language of the Virginia Resolution, “ to interpose for arrest¬ 
ing the progress of the evil, ancl for maintaining, within their respective 
limits, the authorities, rights, and liberties appertaining to them." 
This right of interposition, thus solemnly asserted by the State of Vir¬ 
ginia, be it called what it may—State-right, veto, nullification, or by 
any other name—I conceive to be the fundamental principle of our 
system, resting on facts historically as certain as our revolution itself, 
and deductions as simple and demonstrative as that of any political 
or moral truth whatever; and I firmly believe that on its recognition 
depend the stability and safety of our political institutions. 

I am not ignorant that those opposed to the dotcrine have always, 
now and formerly, regarded it in a very different light, as anarchical 
and revolutionary. 6 Calhoun's Works, pp. 60-61. 

Should the General Government and a State come into conflict, we 
have a higher remedy: the power which called the General Government 
into existence, which gave it all its authority, and can enlarge, contract, 
or abolish its powers at its pleasure, may be invoked. The States 
themselves may be appealed to—three-fourths of which, in fact, form 
a power, whose decrees are the Constitution itself, and whose voice can 
silence all discontent. The utmost extent, then, of the power is, that 
a State acting in its sovereign capacity as one of the parties to the 
constitutional compact, may compel the Government, created by that 
compact, to submit a question touching its infraction, to the parties 
who created it; to avoid the supposed dangers of w'hich, it is proposed 


514 


State Government, Relations to Federal 


to resort to the novel, the hazardous, and, I must add, fatal project 
of giving to the General Government the sole and final right of inter¬ 
preting the Constitution—thereby reversing its will, instead of a rule 
of action impressed on it at its creation, and annihilating, in fact, the 
authority which imposed it, and from which the Government itself 
derives its existence. 6 Calhoun's Works, pp. 6S-9. 

The above is a thought in which Jefferson, Madison, Cal¬ 
houn and Lincoln, all agreed that all questions and differences 
as to state-rights should be settled by a convention of all the 
states in the mode provided in the Constitution itself. Such 
a convention would have settled the question of nullification 
of slavery and of secession; and it would now settle that of 
Socialism, Communism and anarchy, which threatens to de¬ 
stroy both State and Federal Governments. 

Jefferson Davis’ views on this subject follow: 

1. That the States of which the American Union was formed, from 
the moment when they emerged from their colonial or provincial con¬ 
dition, became severally sovereign, free, and independent States—not 
one State, or nation. 

2. That the union formed under the Articles of Confederation was 
a compact between the States, in which these attributes of “sovereignty, 
freedom and independence,” were expressly asserted and guaranteed. 

3. That, in forming the “more perfect union,” of the Constitution, 
afterward adopted, the same contracting powers formed an amended 
compact, without any surrender of these attributes of sovereignty, free¬ 
dom, and independence, either expressed or implied: on the contrary, 
that, by the tenth amendment to the Constitution, limiting the power 
of the Government to its express grants, they distinctly guarded 
against the presumption of a surrender of anything by implication. 

4. That political sovereignty resides, neither in industrial citizeps, 
nor in organized masses nor in tractional subdivisions of a community, 
but in the people of an organized political body. 

5. That no “republican form of government,” in the sense in which 
that expression is used in the Constitution, and was generally under¬ 
stood by the founders of the Union—whether it be the government of a 
State or of a confederation of States—is possessed of any sovereignty 
whatever, but merely exercises certain powers delegated by the sov¬ 
ereign authority of the people, and subject to recall and reassumption 
by the same authority that conferred them. Davis on The Rise and 
Fall of The Confederate Government, Vol. I, 157. 

Mr. Webster, in a speech in Virginia in 1851, said: 

“If the south were to violate any part of the Constitution intention¬ 
ally and systematically, and persist in so doing year after year, and 
no remedy could be had, would the North be any longer bound by the 
rest of it? And if the North, were, deliberately, habitually, and of fixed 
purpose, to disregard one part of it, would the South be bound any 
longer to observe its other obligations? 


State Government, Compact Between 


515 


“How absurd it is to suppose that, when different parties enter 
into a compact for certain purposes, either can disregard any one pro¬ 
vision, and expect, nevertheless, the other to observe the rest! . . . 

“I have not hesitated to say, and I repeat, that, if the Northern 
States refuse, willfully and deliberately, to carry into effect that part 
of the Constitution which respects the restoration of fugitive slaves, 
and Congress provides no remedy, the South would no longer be 
bound to observe the compact. A bargain can not be broken on one 
side, and still bind the other side.” Davis on The Rise and Fall of 
The Confederate Government, Vol. I, 167. 

Entirely in accord with these truths are the arguments of Mr. 
Madison, in the “Federalist,” to show that the great principles of the 
Constitution are substantially the same as those of the Articles of 
Confederation. He says: 

“I ask, What are these principles? Do they require that, in the 
establishment of the Constitution, the States should be regarded as 
distinct and independent sovereigns? They are so regarded by the 
Constitution proposed. ... Do these principles, in fine, require 
that the powers of the General Government should be limited, and that, 
beyond this limit, the states should be left in possession of their sov¬ 
ereignty and independence? We have seen that, in the new Govern¬ 
ment as in the old, the general powers are limited; and that the 
states, in all unenumerated cases, are left in the enjoyment of their 
sovereign and independent jurisdiction.” 

“The truth is,” he adds, “that the great principles of the Constitu¬ 
tion proposed by the Convention may be considered less absolutely 
new, than as the expansion of principles which are found in the Articles 
of Confederation .” Davis on The Rise and Fall of The Confederate 
Government, Vol. I, 170-1. 

Mr. Everett says: “The states are not named in it; the word sov¬ 
ereignty does not occur in it; the right of secession is as much ignored 
in it as the procession of the equinoxes.” We have seen how very 
untenable is the assertion that the states are not named in it, and 
how much pertinency or significance in the omission of the word 
“sovereignty.” The pertinent question that occurs is, Why was so 
obvious an attribute of sovereignty not expressly renounced if it was 
intended to surrender it? It certainly existed; it was not surrendered; 
therefore it still exists. This would be a more national and rational 
conclusion than that it has ceased to exist because it is not mentioned. 

The simple truth is, that it would have been a very extraordinary 
thing to incorporate into the Constitution any express provision for the 
secession of the states and dissolution of the Union. Its founders un¬ 
doubtedly desired and hoped that it would be perpetual; against the 
proposition for power to coerce a State, the argument was that it would 
be a means, not of preserving, but of destroying, the Union. Davis 
on The Rise and Fall of The Confederate Government, Vol. I, 172. 

The ratification of the Constitution by Virginia has already been 
quoted, in which the people of that State, through their Convention, 
did expressly “declare, and make known that the powers granted 
under the Constitution, being derived from the people of the United 


516 


State Government, Not Coerced by Federal 


States, may be resumed by them, whensoever the same shall be per¬ 
verted to their injury or oppression, and that every power not granted 
thereby remains with them and at their will.” 

New York and Rhode Island were no less explicit, both declaring 
chart “the powers of government may be reassumed by the people 
whenever it shall become necessary to their happiness.” 

These expressions are not mere obiter dicta, thrown out incidentally, 
and entitled only to be regarded as an expression of opinion by their 
authors. Davis on The Rise and Fall of The Confederate Government, 
Yol. I, 113. 

In the language of the Declaration, of Independence, “All experience 
hath shown that mankind are more disposed to suffer, while evils are 
sufferable, than to right themselves by abolishing the forms to which 
they are accustomed.” Would not real grievances be rendered more 
tolerable by the consciousness of power to remove them; and would 
not even imaginary wrongs be embittered by the manifestation of a 
purpose to make them perpetual? To ask these questions is to answer 
them. 

The wise and brave men who had, at much peril and great sacrifice, 
secured the independence of the states, were as little disposed to sur¬ 
render the sovereignty of the states as thy were anxious to remedy 
the defects of the Confederation. The Union they formed was not to 
destroy the states, but to “secure the blessings of liberty to ourselves 
and our posterity.” Davis on The Rise and Fall of The Confederate 
Government, Yol. I, 176. 

Edmund Randolph, Governor of Virginia, although the mover of the 
original proposition to authorize the employment of the forces of the 
Union against a delinquent member, which had been so signally de¬ 
feated in the Federal Convention, afterward in the Virginia Convention, 
made an eloquent protest against the idea of the employment of force 
against the State. “What species of military coercion could the Gen¬ 
eral Government adopt for the enforcement of obedience to its de¬ 
mands? Either an army sent into the heart of a delinquent State, or 
blocking up its ports. Have we lived to this, then, that, in order to 
suppress and exclude tyranny, it is necessary to render the most af¬ 
fectionate friends the most bitter enmies, set the father against the 
son, and make the brother slay the brother? Is this the happy ex¬ 
pedient that is to preserve liberty? Will it not destroy it? If any 
army be once introduced to force us, if once marched into Virginia, 
figure to yourselves what the dreadful consequence will be; the most 
lamentable civil war must ensue.” 

We have seen already how vehemently the idea of judicial coercion 
was repudiated by Hamilton, Marshall, and others. The suggestion of 
military coercion was uniformly treated, as in the above extracts, with 
still more abhorrence. No principle was more fully and firmly settled 
on the highest authority than that, under our system, there could be 
no coercion of a State. Davis on The Rise and Fall of The Confederate 
Government, Yol. I, 118-9. 

The Boston memorial to Congress as prepared by a committee with 
Mr. Webster at its head, said that the new States “are universally 


States Creators, Federal Government Creature 


517 


considered as admitted into the Union upon the same footing as the 
original states, and as possessing, in respect to the Union, the same 
rights of sovereignty, freedom, and independence, as the other states.” 

But, with regard to States formed of territory acquired by purchase 
from France, Spain, and Mexico, it is claimed that, as they were bought 
by the United States, they belong to the same, and have no right to 
withdraw at will from an association the property which had been pur¬ 
chased by the other parties. 

Happy would it have been if the equal rights of the people of all the 
States to the enjoyment of territory acquired by the common treasure 
could have been recognized at the proper time! There would then have 
been no secession and no war. Davis on The Rise and Fall of The Con¬ 
federate Government, Vol. I, 181. 

The treaty by which the Louisiana territory was ceded to the United 
States expressly provided that the inhabitants thereof should be ‘‘ad¬ 
mitted, as soon as possible, according to the principles of the Federal 
Constitution, to the enjoyment of all the rights, advantages, and im¬ 
munities of citizens of the United States.” In all other acquisitions of 
territory the same stipulation is either expressed or implied. Indeed, 
the denial of the right would be inconsistent with the character of 
American political institutions. Davis on The Rise and Fall of The 
Confederate Government, Vol. I, 181-2. 

Mr. Callioun thus states his view of the relation: 

They ordained and established all the parts; first, by their separate 
action, their respective State governments; and next, by their concur¬ 
rent action, with the indispensable co-operation of their respective gov¬ 
ernments, they ordained and established a common government, as a 
supplement to their separate governments. The object was to do that, 
by a common agent, which could not be as well done, or done at all, by 
their separate agencies. The relation, then, in which the States stand 
to the system, is that of the creator to the creature; and that, in which 
the two governments stand to each other, is of coequals and co-ordi¬ 
nates—as has been fully established:—with the important difference, 
in this last respect, that the separate governments of the States were 
the first in the order of time, and that they exercised an active and in¬ 
dispensable agency in the creation of the common government of all 
the States; or, as it is styled, the government of the United States. 

Such is their true position;—a position, not only essential in theory, 
in the formation of a federal government—but to its preservation in 
practice. Without it, the system could not have been formed,—and 
without it, it cannot be preserved. 1 Calhoun's Works, p. 382. 

Relations of the States to One Another 

The Supreme Court’s view: 

If the States of the Union were possessed of an absolute sovereignty, 
instead of a limited one, they could demand of each other reparation 
for an unlawful invasion of their territory and the surrender of parties 
committing the offence, and in case of refusal to comply with the de¬ 
mand, could resort to reprisals, or take any other measure they might 
deem necessary as redress for the past and security for the future. But 


518 


States; Internal and Domestic Affairs 


the states of the Union are not absolutely sovereign. Their sovereignty 
is qualified and limited by the conditions of the Federal Constitution. 
They can not declare war or authorize reprisals on other states. Their 
ability to prevent the forcible abduction of persons from their territory 
consists solely in their power to punish all violations of their criminal 
laws committed within it, whether by their own citizens or by citizens 
of other states. 127 U. S. 7Oh-5. 

“Powers of States Internal; of United States External” 

Mr. Madison makes the following remarks on this classifica¬ 
tion : 

It must be confessed, that the classification of constitutional powers 
into external and internal, though often used to express the division 
between Federal and State powers, is liable to too many exceptions to 
be a safe guide, without keeping the exceptions in view. Not only do 
the Federal powers, which have been referred to as external, operate 
internally, but some of the internal powers, whether exercised by the 
one government or the other, have also an external operation. Ex¬ 
cises or direct taxes on vending of imports, if employed by the State 
authorities, must have a bearing on imports or exports, as real and 
material as duties imposed on them. On the other hand, certain Fed¬ 
eral powers have an operation altogether internal, as in the case of the 
post office, direct taxes, &c. Occasionally the definition of the Federal 
power is extended to the relations with and between the States, as well 
as to the relations with foreign nations. But the definition is still 
defective. Questions arising under a bankrupt law, and under State 
laws violating contracts, though between citizens of the same State, 
are within the Federal jurisdiction. 

The constitution of the United States is truly sui generis; and in 
expounding it, the delineation and distribution of power on the face 
of it must never be overlooked. 4 Writings of Madison, pp. 256-7. 

States as Parties to the Constitution 

The Constitution of the United States was formed by the sanction 
of the States, given by each in its sovereign capacity. It adds to the 
stability and dignity, as well as to the authority of the Constitution, 
that it rests on this legitimate and solid foundation. The States, then, 
being the parties to the constitutional compact, and in their sovereign 
capacity, it follows of necessity that there can be no tribunal above 
their authority to decide, in the last resort, whether the compact made 
by them be violated; and, consequently, that, as the parties to it, they 
must themselves decide, in the last resort, such questions as may be 
of sufficient magnitude to require their interposition. 4 Writings of 
Madison, p. 517. 

It does not follow, however, because the States, as sovereign parties 
to their constitutional compact, must ultimately decide whether it has 
been violated, that such a decision ought to be interposed either in a 
hasty manner or on doubtful and inferior occasions. Even in the case 
of ordinary conventions between different nations, where, by the strict 
rule fo interpretation, a breach of a part may be deemed a breach of 
the whole—every part being deemed a condition of every other part, 


States’ Rights 


519 


and of the whole—it is always laid down that the breach must he wilful 
and material, to justify an application of the rule. But in the case of 
an intimate and constitutional union, like that of the United States, 
it is evident that the interposition of the parties, in their sovereign 
capacity, can be called for by occasions only deeply, essentially affect¬ 
ing the vital principles of their political system. 4 Writings of Madi¬ 
son, p. 518. 


Stales’ Rights 

The following are some of the powers claimed for the states, 
by Mr. Calhonn, Hayne and other States Right advocates, 
which were not acceded to by Mr. Webster, but disputed by 
him; he thus states the claims: 

I understand the honorable gentleman from South Carolina to main¬ 
tain, that it is a right of the State Legislatures to interfere, whenever, 
in their judgment, this government transcends its constitutional limits, 
and to arrest the operation of its laws. 

I understand him to maintain this right, as a right existing under 
the Constitution, not as a right to overthrow it on the ground of ex¬ 
treme necessity, such as would justify violent revolution. 

I understand him to maintain an authority, on the part of the States, 
thus to interfere, for the purpose of correcting the exercise of power by 
the general government, of checking it, and of compelling it to conform 
to their opinion of the extent of its powers. 

I understand him to maintain, that the ultimate power of judging of 
the constitutional extent of its own authority is not lodged exclusively 
in the general movement, or any branch of it; but that, on the con¬ 
trary, the States may lawfully decide for themselves, and each State 
for itself, whether, in a given case, the act of the general government 
transcends its power. 

I understand him to insist, that, if the exigency of the case, in 
the opinion of any State government, require it, such State government 
may, by its own sovereign authority, annul an act of the general gov¬ 
ernment which it deems plainly and palpably unconstitutional. 3 Web¬ 
ster's Works, (7th. ed.J, p. 318. 

Mr. Hayne here rose and said, that for the purpose of being clearly 
understood, he would state that his proposition was in the words of 
the Virginia resolution, as follows: “That this assembly both ex¬ 
plicitly and permanently declare, that it views the powers of the Fed¬ 
eral government, as resulting from the compact to which the States are 
parties, as limited by the plain sense and intention of the instrument 
constituting that compact, as no farther valid than they are authorized 
by the grants enumerated in that compact; and that, in case of a delib¬ 
erate, palpable, and dangerous exercise of other powers, not granted 
by the said compact, the States who are parties thereto have the right, 
and are in duty bound to interpose, for arresting the progress of the 
evil, and for maintaining within their respective limits the authorities, 
rights, and liberties appertaining to them.” 3 Webster's Works, (7th. 
ed.J, p. 319. 

Mr. Hayne further said: He did not contend for the mere right of 
revolution, but for the right of constitutional resistance. What he 


520 


States' Eights 


maintained was, that in case of a plain, palpable violation of the Con¬ 
stitution by the general government, a State may interpose; and that 
this interposition is constitutional. 3 Webster's Works , (7th. ed.) y 
p. 320. 

Mr. Webster thus answered these claims: 

I say the right of a State to annul a law of Congress can not be 
maintained, but on the ground of the inalienable right of man to resist 
oppression; that is to say, upon the ground of revolution. I admit that 
there is an ultimate, violent remedy, above the Constitution and in 
defiance of the Constitution, which may be resorted to when a revolu¬ 
tion is to be justified. But I do not admit, that, under the Constitution 
and in conformity with it, there is any mode in which a State govern¬ 
ment, as a member of the Union, can interfere and stop the progress 
of the general government, by force of -her own laws, under any cir¬ 
cumstance whatever. 3 Webster's Works, (7th. ed.), p. 321. 

I was forcibly struck, Sir, with one reflection, as the gentleman 
went on in his speech. He quoted Mr. Madison’s resolutions, to prove 
that a State may interfere, in a case of deliberate, palpable, and dan¬ 
gerous exercise of a power not granted. The honorable member sup¬ 
poses the tariff law to be such an exercise of power; and that conse¬ 
quently a case has arisen in which the State may, if it see fit, interfere 
by its own law. Now it so happens, nevertheless, that Mr. Madison 
deems this same tariff law quite constitutional. Instead of a clear 
and palpable violation, it is, in his judgment, no violation at all. So 
that, while they use his authority for a hypothetical case, they reject 
it in the very case before them. All this, Sir, shows the inherent 
futility, I had almost used a stronger word, of conceding this power 
of interference to the State, and then attempting to secure it from 
abuse by imposing qualifications of which the States themselves are- to 
judge. One of two things is true; either the laws of the Union are 
beyond the discretion and beyond the control of the States; or else we 
have no constitution of general government, and are thrust back again 
to the days of the Confederation. 3 Webster's Works, (7th. ed.). p. 
331. 

The following is Mr. Webster’s explanation of the Virginia 
Resolutions, which was the Bible of Democracy for half a cen¬ 
tury, and were drafted by Madison under the advice of Jef¬ 
ferson : 

I wish now, Sir, to make a remark upon the Virginia resolutions of 
1798. I can not undertake to say how these resolutions were under¬ 
stood by those who passed them. Their language is not a little indefi¬ 
nite. In the case of the exercise by Congress of a dangerous power 
not granted to them, the resolutions assert the right, on the part of 
the State, to interfere and arrest the progress of the evil. This is sus¬ 
ceptible of more than one interpretation. It may mean no more than 
that the States may interfere by complaint and remonstrance, or by 
proposing to the people an alteration of the Federal Constitution. This 
would all be quite unobjectionable. Or it may be that no more is 
meant than to assert the general right of revolution, as against all gov¬ 
ernments, in cases of intolerable oppression. This no one doubts, and 
this, in my opinion, is all that he who framed the resolutions could 


States' Rights 


521 


have meant by it; for I shall not readily believe that he was ever of 
opinion that a State, under the Constitution and in conformity with 
it, could, upon the ground of her own opinion of its unconstitutionality, 
however clear and palpable she might think the case, annul a law of 
Congress, so far as it should operate on herself, by her own legislative 
power. 3 Webster's Works, (7th. ect.), p. 332. 

Ever since the foundation of the Union, two schools of statesmen 
have been found, divided in their views on the nature and boundaries 
of state rights. According to one school, the Federal constitution is 
to be subjected to the national government and a liberal interpretation 
for the preservation of the autonomy of the States. According to the 
other school, the rule of interpretation is to be reversed. Those holding 
the one opinion contend that the government of the Union should be 
held strictly to the exercise of the powers expressly granted to it, and 
that its province and jurisdiction should not be enlarged by implica¬ 
tion. According to the other party, the true theory of our government 
and institutions is in favor of such a construction of the constitution 
as will give the Federal government the largest measure of power which 
is compatible with the continued and useful existence of the States. 
Black on Constitutional Laws, 25. 

Between these two extremes lies the truth. Although the two 
theories of construction, strict and liberal, still subsist, it is now quite 
generally agreed that both the several states and the Union are su¬ 
preme, each within its own appropriate sphere; that the rights of the 
individual state and of the Union are equally necessary to be preserved 
and must be accommodated to each other; that the authorities of the 
Union are to judge of the extent of the powers granted to it; that the 
rightful autonomy of each state is beyond the reach of Federal interfer¬ 
ence; and that the Union is perpetual and indissoluble. Black on Con¬ 
stitutional Laws, 25-6. 

Bancroft’s view of States’ Rights. 

Except for the powers granted to the Federal government, each 
state is in all things supreme, not by grace, but of right. The United 
States may not interfere with any ordinance or law that begins and 
ends within the state. This supremacy of the states in the powers 
which have not been granted is as essentially a part of the system as" 
the supremacy of the general government in its sphere. The states 
are at once the guardians of the domestic security and the happiness 
of the individual, and they are the parents, the protectors, and the stay 
of the Union. The states are members of the United States as one 
great whole; and the one is as needful as the other. The powers of 
government are not divided between them; they are distributed; so 
that there need be no collision in their exercise. The union without 
self-existent states is a harp without strings; the states without union 
are the chords that are unstrung. But for state rights the union would 
perish from the paralysis of its limbs. The states, as they gave life 
to the union, are necessary to the continuance of that life. Within 
their own limits they are the guardians of industry, of property, of 
personal rights, and of liberty. But state rights are to be defended 
inside of the Union; not from the outside citadel from which the union 
may be struck at or defiled. The states and the United States are not 


522 


States’ Rights 


antagonists; the states in union form the Federal republic; and the 
system can have life and strength and health and beauty only by their 
harmonious action. In short, the constitution knows nothing of United 
States alone, or states alone; it adjusts the parts harmoniously in an 
organized unity. Impair the relations or the vigor of any part, and the 
disease enters into the veins of the whole. That there may be life in 
the whole, there must be healthy life in every part. The United States 
are the states in Union; these are so inwrought into the Constitution 
that the one can not perish without the other. Bancroft on the His¬ 
tory of the Constitution of the United States, 448-9. 

Rome, in annexing the cities around itself, had not given them equal 
influence with itself in proportion to their wealth and numbers, and 
consequently there remained a cause of dissatisfaction never healed. 
America has provided for admission of new states upon equal terms, 
and only upon equal terms, with the old ones. 

For E!urope there remained the sad necessity of revolution. For 
America the gates of revolution are shut and barred and bolted down, 
never again to. be thrown open; for it has found a legal and peaceful 
way to introduce every amelioration. Peace and citizenship and per¬ 
fect domestic free-trade are to know no end. The constitution is to the 
American people a possession for all ages; it creates an indissoluble 
union of imperishable states. 

The Federal republic will carry tranquillity, and freedom, and order 
throughout its vast domain. Bancroft on History of the Constitution 
of the United States, 450. 

Mr. Bryce’s view of States’ Rights. 

What State sovereignty means and includes is a question which in¬ 
cessantly engaged the most active legal and political minds of the 
nation from 1789 down to 1870. Some thought it paramount to the 
rights of the Union. Some considered it as held in suspense by the 
Constitution, but capable of reviving as soon as a State should desire 
to separate from the Union. Some maintained that each State had in 
accepting the Constitution finally renounced its sovereignty, which 
thereafter existed only in the sense of such an undefined domestic 
legislative and administrative authority as had not been conferred upon 
Congress. The conflict of these views, which became acute in 1830, 
when South Carolina claimed the right of nullification, produced Seces 
sion and the war of 1861-65. Since the defeat of the Secessionists, the 
last of these views may be deemed to have been established, and the 
term| “State sovereignty” is now but seldom heard. Even “State 
rights” have a different meaning from that which they had thirty years 
ago. Bryce's American Commonwealth, Vol. I, 408. 

In 1820 Mr. Jefferson spoke of the encroachments which 
Federal judiciary were making upon the States’ powers. Of 
it he thus wrote: 

I am sensible of the inroads daily making by the Federal, into the 
jurisdiction of its co-ordinate associates, the State Governments. The 
legislative and executive branches may sometimes err, but elections 
and dependence will bring them to rights. The judiciary branch is the 
instrument which, working like gravity, without intermission, is to 


States, Powers of 


523 


press us at last into one consolidated mass. Against this I know no 
one who, equally with Judge Roane himself, possesses the power and 
the courage to make resistance; and to him I look, and have long 
looked, as our strongest bulwark. If Congress fails to shield the States 
from dangers so palpable and so imminent, the States must shield 
themselves, and meet the invader foot to foot. 15 Jefferson's Writings, 
(Mem. ed.), p. 307. 

The power of taxation by the Federal government upon the subjects 
and in the manner described by the Internal Revenue Act of June 30, 
1864, is undoubted. There are, however, certain departments which 
are excepted from the general power. The right of the states to ad¬ 
minister their own affairs through their legislative, executive, and 
judicial departments, in their own manner through their own agencies, 
is conceded by the uniform decisions of this court, and by the practice 
of the Federal government from its organization. This carries with it 
an exemption of those agencies and instruments from the taxing power 
of the Federal government. If they may be taxed lightly, they may 
be taxed heavily; if justly, oppressive. Their operation may be im¬ 
peded and may be destroyed, if any interference is permitted. Hence, 
the beginning of such taxation is not allowed on the one side, is not 
claimed on the other. 17 Wall. 322. 157 U. S. 603. 

Powers of the States 

The Legislatures of the States have a right also to originate amend¬ 
ments to the Constitution, by a concurrence of two-thirds of the whole 
number, in applications to Congress for the purpose. When new States 
are to be formed by a junction of two or more States, or parts of States, 
the Legislatures of the States concerned are, as well as Congress, to 
concur in the measure. The States have a right also to enter into 
agreements or compacts, with the consent of Congress.. In all such 
cases a communication among them results from the object which is 
common to them. J) Writings of Madison, p. 553. 

The States can not rid themselves of their obligations otherwise 
than by the honest payment of the debt. They can pass no law impair¬ 
ing the obligation of their own contracts. They can make nothing a 
tender, in discharge of such contracts, but gold and silver. They 
possess all adequate power of providing for the case, by taxes and in¬ 
ternal means of revenue. They can not get around their duty, nor evade 
its force. Any failure to fulfil its undertakings would be an open viola¬ 
tion of public faith, to be followed by the penalty of dishonor and dis¬ 
grace; a penalty, it may be presumed, which no State of the American 
Union would be likely to incur. 6 Webster's Works, (7th. ed.), p. 5^0. 

In 1833, Baring Brothers of London, asked the opinion of Mr. 
Webster, as to the power of the States to borrow money, and a 
part of his reply was as follows: 

Your first inquiry is, “whether the Legislature of one of the States 
had legal and constitutional power to contract loans at home and 
abroad.” To this I answer, that the Legislature of a Sate has such 
power; and how any doubt could have arisen on this point it is difficult 
for me to conceive. 


524 


States, Reserved Powers of 


Every State is an independent, sovereign, political community, ex¬ 
cept insofar as certain powers, which it might otherwise have exer¬ 
cised, have been conferred on a general government, established under 
a written constitution, and exercising its authority over the people 
of all the States. This general government is a limited government. 
Its powers are specific and enumerated. All powers not conferred on 
it still remain with the States or with the people. The State legis¬ 
latures, on the other hand, possess all usual and ordinary powers of 
government, subject to any limitations which may be imposed by their 
own constitutions, and with the exception, as I have said, of the opera¬ 
tion on those powers of the Constitution of the United States. 

The powers conferred on the general government can not, of course, 
be exercised by any individual State; nor can any State pass any law 
which is prohibited by the Constitution of the United States. 6 Web¬ 
ster’s Works, (7th. edj, p. 537. 

Thus no State can by itself make war, or conclude peace, or enter 
into alliances or treaties with foreign nations. In these, and in other 
important particulars, the powers which would have otherwise be¬ 
longed to the State can now be exercised only by the general govern¬ 
ment, or the government of the United States. Nor can a State pass a 
law which is prohibited by its own constitution. But there is no pro¬ 
vision in the Constitution of the United States, nor, so far as I know 
or have understood, in any State constitution, prohibiting the Legis¬ 
lature of a State from contracting debts, or making loans either at home 
or abroad. Every State has the power of levying and collecting taxes, 
direct and indirect, of all kinds, except that no State can impose duties 
on goods and merchandise imported, that power belonging exclusively 
to Congress by the Constitution. That power of taxation is exercised 
by every State, habitually and constantly, according to its own discre¬ 
tion and the exigencies of its own government. 6 Webster’s Works, 
(7th. ed.), p. 538. 


Reserved Powers of States 

The reserved powers of the States in the regulation of their internal 
affairs must be exercised consistently with the powers delegated to the 
United States. If there be a conflict, the powers delegated must pre¬ 
vail, being so much authority taken from the States by the express 
sanction of their people; for the Constitution itself declares that laws 
made in pursuance of it shall be the supreme law of the land. But 
those powers which authorize legislation touching the health, morals,, 
good order, and peace of their people were not delegated, and are not so 
essential to the existences and prosperity of the States that it is not 
to be presumed that they will be encroached upon so as to impair their 
reasonable exercise. 

How can these reserved powers be reconciled with the conceded 
power of Congress to regulate interstate commerce? As said above, 
the State can not exclude an article from commerce, and consequently 
from importation simply by declaring that its policy requires such 
exclusion. 125 U. S., 503. 

It is the undoubted and reserved power of every State here, as a 
political body, to decide, independent of any provisions made by Con¬ 
gress, though subject not to conflict with any of them when rightful, 


States, Reserved Powers of 


525 


who shall compose the population, who become its residents, who its 
citizens, who enjoy the privileges of its laws, and be entitled to their 
protection and favor, and what kind of property and business it will 
tolerate and protect. And no one government, or its agents or naviga¬ 
tors, possess any right to make another State, against its consent, a 
penitentiary, or hospital, or poor-house farm, for its wretched out¬ 
casts, or a receptacle for its poisons to health, and instruments of 
gambling and debauchery. Indeed, the United States Supreme Court 
has deliberately said: “We entertain no doubt whatsoever, that the 
States, in virtue of their general police power, possess full justification 
to arrest and restrain runaway slaves, and remove them from their 
borders, and otherwise to secure themselves against their depredations 
and evil example, as they certainly do in cases of idlers, vagabonds 
and paupers.” 16 Pet. 625. 5 How. 629. 

The Supreme Court thus spoke of these powers: 

Many State laws are such, that their expediency and justice may 
be doubted widely by this tribunal; but this confers no authority on us 
to nullify them, nor is any such authority, for such a cause, conferred 
on Congress by any part of the Constitution. The States stand prop¬ 
erly on their reserved rights, within their own powers and sovereignty 
to judge of the expediency and wisdom of their own laws; and while 
they take care not to violate clearly any portion of the Constitution or 
statutes of the general government, our duty to that Constitution and 
laws, and our respect for State rights, must require us not to interfere. 
5 How., 631. 

It has been frequently decided by the United States Supreme Court 
“that the powers which relate to merely municipal regulations, or what 
may more properly be called internal police, are not surrendered by 
the States, or restrained by the Constitution of the United States; and 
that consequently, in relation to these, the authority of a State is com¬ 
plete, unqualified, and conclusive.” Without attempting to define what 
are the peculiar subjects or limits of this power, it may safely be 
affirmed, that every law for the restraint of the public peace, health, 
and morals, must come within this category. 

As subjects of legislation, they are from their very nature, of primary 
importance; they lie at the foundation of social existence; they are for 
the protection of life and liberty; and necessarily compel all laws on 
subjects of secondary importance, which relate only to property, con¬ 
venience, or luxury, to recede, when they come in conflict or collision, 
salus populi suprema lex. 5 How., 632. 

The tenth amendment of the Constitution declares that “the pow¬ 
ers not delegated to the United States by the Constitution, nor pro¬ 
hibited by it to the States, are reserved to the States respectively, or to 
the people.” Before the adoption of the Constitution, the States pos¬ 
sessed, respectively, all the attributes of sovereignty. In their organic 
laws they had distributed their powers of government according to their 
own views, subject to such modifications as the people of each State 
might sanction. The agencies established by the articles of confedera¬ 
tion were not entitled to the dignified appellation of government. 
Among the delegated functions, it is declared that “Congress shall have 
power to regulate commerce with foreign nations, and among the sev- 


526 


States, Reserved Poivers of 


eral States, and with the Indian tribes.” This investiture of power is 
declared by the United States Supreme Court, in 9 Wheat. 1, to be 
complete in itself, and to acknowledge no limitations other than are 
prescribed by the Constitution. 

There may be a limitation on the exercise of sovereign powers, but 
that State is not sovereign which is subject to the will of another. This 
remark applies equally to the Federal and state governments. The 
Federal government is supreme within the scope of its delegated pow¬ 
ers, and the state governments are equally supreme in the exercise of 
those powers not delegated by them nor inhibited to them. From this 
it is clear, that while these supreme functions are exercised by the 
Federal and State governments within their respective limitations, 
they can never come in conflict. And when a conflict occurs, the in¬ 
quiry must necessarily be, which is paramount law? And that must 
depend upon the supremacy of the power by which it was enacted. The 
Federal government is supreme in the exercise of powers delegated to 
it, but beyond this, its acts are unconstitutional and void. So the acts 
of the States are void, when they do that which is inhibited to them, 
or exercise a power which they have exclusively delegated to the Fed¬ 
eral government. 5 How., 588. 

Sacred as these reserved powers are regarded, the court is particu¬ 
lar to declare with emphasis the supreme and paramount authority of 
the Constitution and laws of the United States, relating to the regula¬ 
tion of commerce with foreign nations, and among the several States; 
and when any of them are so exercised as to come into conflict with 
the free course of the powers vested in Congress, the law of the State 
must yield to the supremacy of the Federal authority, though such law 
must have been enacted in the exercise of a power undelegated and in¬ 
disputably reserved to the States. 128 U. 8., 18. 

It is admitted that, in regard to the commercial, as to other powers, 
the States can not be held to have parted with any of the attributes of 
sovereignty which are not plainly vested in the Federal government 
and inherited to the States, either expressly or by necessary implica¬ 
tion. This implication may arise from the nature of the power. In the 
same section which gives the commercial power to Congress, is given 
power “to borrow money on the credit of the United States,” “to estab¬ 
lish postoflices and post-roads,” “to define and punish piracies and fel¬ 
onies committed on the high seas,” “to declare war,” “to provide and 
maintain a navy,” &c., and “to make all laws which shall be necessary 
and proper for carrying into execution the foregoing powers.” 

Only one of these powers is, in the Constitution, expressly inhibited 
to the States; and yet, from the nature of the other powers, they are 
equally beyond State jurisdiction. 7 Hoiv., 394. 

When the commercial power was under discussion in the conven¬ 
tion which formed the Constitution, Mr. Madison observed, that he 
was more and more convinced that the regulation of commerce was in 
its nature indivisible, and ought to be wholly under one authority.” 
Mr. Sherman said: “The power of the United States to regulate trade, 
being supreme, can control interferences of the State regulations when 
such interferences happen; so that there is no danger to be apprehended 
from a concurrent jurisdiction.” Mr. Langdon insisted that the regu- 


States, Functions of 


527 


lation of trade be regulated by Congress, and that the States ought to 
have nothing to do with it. And the motion carried, “that no State 
shall lay any duty on tonnage without the consent of Congress.” 3 
Madison Papers, 1585, 1586. 

The adoption of the above provision in the Constitution, and also 
the one in the same section: “That no State shall, without the assent 
of the Congress, lay any imposts or duties on imports or exports, except 
what may be absolutely necessary for executing its inspection laws; 
and the net produce of all duties and imposts shall be for the use of 
the treasury of the United States; and all such laws shall be subject to 
the revision and control of the Congress,”—is a restriction, it is con¬ 
tended, upon the acknowledged power of the States. 7 How., 396. 

The reservation of power of the State, evidently related to subjects 
in which the general government had no separate interest; and they 
would have been altogether unnecessary and useless if the State had 
not considered the preceding part of the law as the proffer of a com¬ 
pact which was to be obligatory upon it, if assented to by Congress. 
3 How., 7 45. 

In the great case of Gibbons v. Ogden, 9 Wheat. 1, where Chief Jus¬ 
tice Marshall, after enumerating some of the powers reserved to the 
State, says: “They form a portion of that immense mass of legislation 
which embraces everything within -the territory of a State, not sur¬ 
rendered to the general government; all which can be most advantage¬ 
ously exercised by the States themselves. Inspection laws, quarantine 
laws, health laws of every description, as well as laws for regulating 
the internal commerce of a State, and those which respect turnpike 
roads, ferries, etc., are component parts of this mass.” And he adds 
(what is very pertinent to this discussion): “No direct general power 
over these objects is granted to Congress; and, consequently, they re¬ 
main subject to State legislation. If the legislative power of the 
Union can reach them, it must be for national purposes; it must be 
where the power is expressly given for a special purpose, or is clearly 
incidental to some power which is expressly given.” 118 U. S., 584. 

Powers and Functions of States 

Mr. Bryce thus well describes the power and functions of 
States: 

The power of a State over all communities within its limits is abso¬ 
lute. It may grant or refuse local government as it pleases. The popu¬ 
lation of the city of Providence is more than one-third of that o'f the 
State of Rhode Island, the population of New York city more than one- 
fifth that of the State of New York. But the State might in either case 
extinguish the municipality, and govern the city by a single State com¬ 
missioner appointed for the purpose, or leave it without any govern¬ 
ment whatever. The city would have no right of complaint to the 
Federal President or Congress against such a measure. Massachu¬ 
setts has lately remodeled the city government of Boston just as the 
British Parliament might remodel that of Birmingham. Let an Eng¬ 
lishman imagine a county council for Warwickshire, imagine the mu¬ 
nicipality of Birmingham, or a Frenchman imagine the department of 
the Rhone extinguishing the municipality of Lyons, with no possibility 


528 


States, Functions of 


of intervention by the central authority, and he will measure the dif¬ 
ference between the American States and the local governments of 
Western Europe. 

A State commands the allegiance of its citizens, and may punish 
them for treason against it. The power has rarely been exercised, but 
its undoubted legal existence had much to do with inducing the citizens 
of the Southern States to follow their governments into secession in 
1861. They conceived themselves to owe allegiance to the State as well 
as to the Union, and when it became impossible to preserve both, be¬ 
cause the State had declared its secession from the Union, they might 
hold the earlier and nearer authority to be paramount. Allegiance to 
the State must now, since the war, be taken to be subordinate to alle¬ 
giance to the Union. But allegiance to the State still exists; treason 
against the State is still possible. One can not think of treason against 
Warwickshire or the department of the Rhone. 

These are illustrations of the doctrine which Europeans often fail 
to grasp, that the American States were originally in a certain sense, 
and still for certain purposes remain, sovereign States. Bryce's Amer¬ 
ican Commonwealth, Vol. I, 401. 

What State sovereignty means and includes is a question which in¬ 
cessantly engaged the most active legal and political minds of the 
nation, from 1789 down to 1870. Some thought it paramount to the 
rights of the Union. Some considered it as held in suspense by the 
Constitution, but capable of reviving as soon as a State should desire 
to separate from the Union. Some maintained that each State had in 
accepting the Constitution finally renounced its sovereignty, which 
thereafter existed only in the sense of such an undefined domestic legis¬ 
lative and administrative authority as had not been conferred upon 
Congress. The conflict of these views, which became acute in 1830 
when South Carolina claimed the right of nullification, produced Seces¬ 
sion and the war of 1861-65. Since the defeat of the Secessionists, the 
last of these views may be deemed to have been established, and the 
term “State sovereignty” is now but seldom heard. Even “States 
rights” have a different meaning from that which they had thirty years 
ago. Bryce's American Commonwealth, Vol. I, 408. 

Thus every American citizen lives in a duality of which Europeans, 
always excepting the Swiss, and to some extent the Germans, have no 
experience. He lives under two governments and two sets of laws; he 
is animated by two patriotisms and owes two allegiances. That these 
should both be strong and rarely be in conflict is most fortunate. It is 
the result of skillful adjustment and long habit, of the fact that those 
whose votes control the two sets of governments are the same persons, 
but above all of that harmony of each set of institutions with the other 
sets, a harmony due to the identity of the principles whereon both are 
founded, which makes each appear necessary to the stability of the 
other, the States to the nation as its basis, the National Government to 
the States as their protector. Bryce's American Commonwealth, Vol. 
I, 412. 

The people of a State retain forever in their hands, altogether inde¬ 
pendent of the National government, the power of altering their Con¬ 
stitution. When a new Constitution is to be prepared, or the existing 


State Constitutions 


529 


one amended, the initiative usually comes from the legislature, which 
(by a simple successive legislature, as the Constitution may in 
each instance provide) submits the matter to the voters in one of the 
two ways. It may either propose to the people certain specific amend¬ 
ments, or it may ask the people to decide by a direct popular vote on 
the propriety of calling a constitutional Convention to revise the whole 
existing Constitution. In the former case the amendments suggested 
by the legislature are directly voted on by the citizens; in the latter 
the legislature, as soon as the citizens have voted for the holding of a 
convention, provides for the election by the people of this convention. 
When elected, the Convention meets, sets to work, goes through the old 
Constitution, and prepares a new one, which is then presented to the 
people for ratification or rejection at the polls. Bryce's American 
Commonwealth, Vol. I, 419. 

A State Constitution is not only independent of the central govern¬ 
ment (save in certain points already specified), it is also the fundamen¬ 
tal organic law of the State itself. The State exists as a common¬ 
wealth by virtue of its Constitution, and all State authorities, legisla¬ 
tive, executive, and judicial, are the creatures of, and subject to, the 
State Constitution. Just as the President and Congress are placed be¬ 
neath the Federal Constitution, so the Governor and Houses of a 
State are subject to its Constitution, and any act of theirs done either 
in contravention of its provisions, or in excess of the powers it confers 
on them, is absolutely void. Bryce's American Commonwealth, Vol. I, 
420. 

A State Constitution is really nothing but a law made directly by 
the people voting at the polls upon a draft submitted to them. The 
people of a State when they so vote act as a primary and constituent 
assembly, just as if they were all summoned to meet in one place like 
the folkmoots of our Teutonic forefathers. It is only their numbers 
that prevent them from so meeting in one place, and oblige the vote to 
be taken at a variety of polling places. Hence the enactment of a Con¬ 
stitution is an exercise of direct popular sovereignty to which we find 
few parallels in modern Europe, though it was familiar enough to the 
republics of antiquity, and has lasted till now in some of the cantons 
of Switzerland. 

The importance of this character of a State Constitution as a popu¬ 
larly-enacted law, overriding every minor State law, becomes all the 
greater when the contents of these Constitutions are examined. Euro¬ 
peans conceive of a constitution as an instrument, usually a short in¬ 
strument, which creates a frame of government, defines its departments 
and powers, and declares the “primordial rights” of the subject or citi¬ 
zen as against the rulers. An American State Constitution does this, 
but does more; and in most cases, infinitely more. It deals with a 
variety of topics which in Europe would be left to the ordinary action 
of the legislature, or of administrative authorities; and it pursues 
these topics into a minute detail hardly to be looked for in a funda¬ 
mental instrument. Bryce's American Commonwealth, Vol. I, 421-2. 

The National Government is an artificial creation, with no powers 
except those conferred by the instrument, which created it. A State Gov- 
eernment is a natural growth, which prima facie possesses all the pow¬ 
ers incident to any government whatever. Hence, if the question arises 


530 


State, Legislative Powers of 


whether a State legislature can pass a law on a given subject, the pre¬ 
sumption is that it can do so; and positive grounds must be adduced 
to prove that it can not. It may be restrained by some inhibition either 
in the Federal Constitution, or in the Constitution of its own State. 
But such inhibition must be affirmatively shown to have been imposed, 
or, to put the same point in other words, a State Constitution is held 
to be, not a document conferring defined and specified powers on the 
legislature, but one regulating and limiting that general authority 
which the representatives of the people enjoy ipso jure by their or¬ 
ganization into a legislative body. 

“It has never been questioned that the American legislatures have 
the same unlimited power in regard to legislation which resides in the 
British Parliament, except where they are restrained by written Con¬ 
stitutions. That must be conceded of to be a fundamental principle in 
the political organization of the American States. We can not well 
comprehend how, upon principle, it could be otherwise. The people 
must, of course, possess all legislative power originally. They have 
committed this in the most general and unlimited manner to the 
several State legislatures, saving only such restrictions as are imposed 
by the Constitution of the United States or of the particular State in 
question. 

“The people, in framing the Constitution, committed to the legis¬ 
lature the whole law-making powers of the State which they did not 
expressly or impliedly withhold. Plenary power in the legislature, for 
all purposes of civil government, is the rule. A prohibition to exercise 
a particular power is an exception.” 

It must not, however, be supposed from these dicta that even if the 
States were independent commonwealths, the Federal Government hav¬ 
ing disappeared, their legislatures would enjoy anything approaching 
the omnipotence of the British Parliament, “whose power and jurisdic¬ 
tion is,” says Sir Edward Coke, “so transcendent and absolute that it 
can not be confined, either for persons or causes, within any bounds.” 
“All mischiefs for grievances,” adds Blackstone, “operations and reme¬ 
dies that transcend the ordinary course of the laws are within the reach 
of this extraordinary tribunal.” Parliament being absolutely sovereign, 
can command, or extinguish and swallow up the executive and the 
judiciary, appropriating to itself their functions. But in America, a 
legislature is a legislature and nothing more. The same instrument 
which creates it creates also the executive governor and the judges. 
They hold by a title as good as its own. If the legislature should pass 
a law depriving the governor of an executive function conferred by 
the Constitution, that law would be void. If the legislature attempted 
to interfere with the jurisdiction of the courts, their action would be 
even more palpably illegal and ineffectual. Bryce's American Com¬ 
monwealth, Vol. I, 428-9, J/30. 

Limitations Upon Powers of States 

These limitations are prescribed in the Constitution. They 
are of two classes, absolute and conditional. In the one case 
the States are absolutely prohibited from exercising the powers 
therein mentioned. Such as to make treaties, to grant letters 


States, Limitations Upon Powers of 


531 


of marque and reprisal, to coin money, to emit bills of credit, 
etc.; they shall not impair the obligation of contracts nor 
pass ex post facto laws, nor make legal tender. 

The conditional limitations are that the States shall not ex¬ 
ercise certain powers, without the consent of Congress. Among 
these are to lay imposts or duties on imports or exports, except 
as inspection laws; or to lay any duty on tonnage; nor shall 
they keep troops or ships of war, in times of peace; nor shall 
they enter into any agreement or compact with other States or 
foreign powers. 

The 13th, 14tli and 15th amendments each imposed addi¬ 
tional limitations upon the powers of the States. The United 
States has all the constitutional and international powers of 
the government; the States have all of the internal and do¬ 
mestic powers of government. It is only the first class that is 
prohibited to the States. The States, however, are the orig¬ 
inal sources of all powers which belong to both classes. The 
States also have reserved powers, while the United States has 
only granted powers, never having made a grant of any power, 
no occasion has arisen to reserve any. 

Story thus states the limitations upon State powers. 

It is a mistake that the Constitution was not designed to operate 
upon States in their corporate capacities. It is crowded with provis¬ 
ions which restrain or annul the sovereignty of the States in some of 
the highest branches of their prerogatives. The tenth section of the 
first article contains a long list of disabilities and prohibitions imposed 
upon States. Surely, when such essential portions of State sovereignty 
are taken away, or prohibited to be exercised, it can not be correctly 
asserted that the Constitution does not act upon the States. The lan¬ 
guage of the Constitution is also imperative upon the States as to the 
performance of many duties. It is imperative upon the State legis¬ 
latures to make laws prescribing the time, places, and manner of hold¬ 
ing elections for senators and representatives, and for electors of Presi¬ 
dent and Vice-President. And in these, as well as some other cases, 
Congress have a right to revise, amend, or supersede the laws which 
may be passed by the State legislatures. Story on the Constitution, 
Vol. V, p. 522, § 1739. 

The courts of the United States can, without question, revise the 
proceedings of the executive and legislative authorities of the States; 
and, if they are found to be contrary to the Constitution, may declare 
them of no legal validity. Surely, the exercise of the same right over 
judicial tribunals is not a higher or more dangerous act of sovereign 
power. 

Nor can such a right be deemed to impair the independence of State 
judges. It is assuming the very ground in controversy to assert that 
they possess an absolute independence of the United States. In respect 


532 


States, Limitations Upon Powers of 


to the powers granted to the United States, they are not independent; 
they are expressly bound to obedience by the letter of the Constitu¬ 
tion. Story on the Constitution. Yol. V, p. 523, §§ 1139-10. 

In Harrison v. St. Louis & San Francisco R. R., 232 U. S. 318, a 
statute of the State of Oklahoma which burdened or impeded the right 
of free access to the courts of the United States was held to be repug¬ 
nant to the Constitution and the destructive effect of such legislation 
upon our institutions was pointed out. And light on the subject is 
afforded by a consideration of the ruling in Tullock v. Mulvane, 184 
U. S. 497. See also Insurance Co. v. Morse, 20 Wall. 445, 453; Clark v. 
Bever, 139 U. S. 96, 102-103; 234 U. S. 472-3. 

The Fourteenth Amendment was not intended to deprive the States 
of their power to establish and regulate judicial proceedings and that 
its provisions therefore only restrain acts which so transcend the limits 
of classification as to cause them to conflict with the fundamental con¬ 
ceptions of just and equal legislation. The proposition here relied 
upon therefore comes to this: that there is not such a distinction be¬ 
tween the extraordinary proceeding by mandamus and the ordinary 
judicial proceedings as affords a ground for legislating differently con¬ 
cerning the two. But when thus reduced to its ultimate basis, the 
proposition answers itself, since it can not be formulated without 
demonstrating its own unsoundness. 234 U. S. 414 • 

They are forbidden to interfere with the foreign relations of the 
Union; and to coin money, and emit bills of credit. They can not 
grant titles of nobility, or establish a form of government which is not 
republican, or assume or pay any debt or obligation incurred in aid 
of insurrection or rebellion against the United States, or any claim for 
the loss of emancipation of any slave, or pass a bill of attainder or 
ex post facto law, or deny or abridge the right of citizens of the United 
States to vote on account of race, color or previous condition of servi¬ 
tude, or abridge the privileges or immunities of citizens of the United 
States, or deny to the citizens of the other States the privileges and 
immunities which they allow to their own citizens, or authorize slavery 
or involuntary servitude except as a punishment for a crime after con¬ 
viction, or deny any person within their jurisdiction the equal protec¬ 
tion of their laws. They are compelled to respect contractual rights 
and all other rights to property. They can not make anything but 
gold and silver coin a tender in payment of debts, or pass any law 
impairing the obligation of contracts, or deprive any person of life, 
liberty or property without due process of law. They are directed to 
deliver fugitives from the justice of another State to the executive 
thereof upon his demand. Their courts are obliged to respect the pub¬ 
lic acts, records and judicial proceedings of the other States. 234 
U. S. 415. 


Police Powers of the States 

Mr. Bryce enumerates a few such powers as to different 
States: 

I collect a few instances of recent legislation illustrating the ten¬ 
dency to extend State intervention and the scope of penal law: 

New York provides that no guest shall be excluded from any hotel 
on account of race, creed, or color. 


States , Police Powers of 


533 


Wisconsin requires every hotel above a certain height to be fur¬ 
nished with fireproof staircases. 

Michigan compels railroad companies to provide automatic car 
couplings, so that employees shall not need to go between the cars. 
Other States direct the use of certain kinds of brakes. 

Georgia orders railway companies to put up a bulletin stating how 
much any train already half an hour late is overdue. 

Massachusetts forbids the employment of color-blind persons on 
railroads, and provides for the examination of those so employed. 

Several States order employers to find seats for women in shops, 
warehouses, or manufactories. 

Massachusetts compels corporations to pay workmen weekly. 

Maryland institutes a “State Board of Commissioners of Practical 
Plumbing,” and confines the practice of that industry to persons licensed 
by the same. 

Kansas punishes the making any misrepresentation to or deceiv¬ 
ing any person in the sale of fruit or shade trees, shrubs or bulbs; and 
New Jersey does the like as regards fruit trees and briars. 

Mississippi punishes with fine and imprisonment any legislative, 
executive, judicial, or ministerial officer, who shall travel on any rail¬ 
road without paying absolutely, and without any evasion whatever, 
the same fare as is required of passengers generally. 

Several States offer bounties on the raising of jute, flax, and hemp. 

Texas makes it a punishable misdemeanor to deal in “futures” or 
“keep up any ‘bucket shop’ or other establishment where future con¬ 
tracts are bought or sold with no intention of an actual delivery of 
the article so bought or sold.” 

Georgia imposes on dealers in “futures,” a tax of $500 a year. 

Michigan prescribes a system of minority voting at the election of 
directors of joint stock jcorporations. 

Pennsylvania forbids the consolidation of telegraph companies. 

Ohio punishes by fine and imprisonment the offering to sell “op¬ 
tions,” or exhibiting any quotation of the prices of “margins,” “fu¬ 
tures,” or “options.” 

Colorado, Kansas, North Carolina, make the seduction under prom¬ 
ise of marriage of any chaste woman a felony. 

New York punishes with fine and imprisonment any person “who 
shall send a letter with intent to cause annoyance to any other person.” 

Illinois and Arizona forbid marriages between first cousins. 

Nebraska prohibits the sale of tobacco to minors, and Iowa punishes 
the giving and selling of pistols to them. 

Kentucky prohibits the sale of any book or periodical, “the chief 
feature of which is to record the commission of crimes, or display by 
cuts or illustrations of crimes committed, or the pictures of criminals, 
desperadoes, or fugitives from justice, or of men or women influenced 
by stimulants.” 

Massachusetts compels insurance companies to insure the lives of 
colored persons on the same terms with those of whites. 

Minnesota enacts that all labor performed by contract upon a build¬ 
ing shall be a first lien thereon; and declares that the fact that the 
person performing the labor was not enjoined from so doing shall be 
conclusive evidence of the contract. 


534 


States, Courts and Judicial Powers of 


Alabama makes it a punishable offense for a banker to discount at a 
higher rate than 8 per cent. 

Many States have stringent usury laws. 

Pennsylvania forbids a mortgagee to contract for the payment by 
the mortgagor of any taxes over and above the interest payable. 
Bryce's American Commonwealth, Vol. II, 4%2-3. 

State and Federal Courts 

Federal Courts often administer laws of the State, when 
they acquire jurisdiction. They recognize and follow the 
statutes and common law of the States, in many matters, but 
decline in others. They adhere to the construction of State 
statutes, given by State courts, or as to what the State courts 
hold the common law of that State to be; but will not follow 
it as to general law, such as insurance and commercial law; 
nor do they follow such Courts as to Admiralty or Equitable 
practice. 105 U. S. 667; 113 U. S. 717; 107 U. S. 20. They 
decline, however, to follow a State statute which prohibits the 
Court from charging the jury upon the effect of the evidence. 
91 U. S. 426; 133 U. S. 670. 

Controversies Between the States 

The Supreme Court has jurisdiction as to some controversies 
between two or more States, but not as to all controversies. 
Federalist No. 80. It includes controversies as to boundaries. 
12 Pet. 757; 7 How. 660; 17 How. 478; 23 How. 505; 11 Wall. 
39; 158 U. S. 257. The jurisdiction does not extend to political 
controversies. 24 How. 66. 

Controversies Between a State and Citizens of Other States 

As to history of provision, see Federalist No. 80; 2 Dali 419. 
The Eleventh Amendment was intended to remedy evils grow¬ 
ing out of the construction of this clause. See 6 Wheaton 406; 
117 U. S. 52; 123 U. S. 443; 134 U. S. 130; 135 U. S. 1-23; 107 
U. S. 711; 114 U. S. 317. 

A citizen can not sue his own State in a Federal Court. 134 
U. S. 122. 

As to suit by United States against a State, see 136 U. S. 
211; 143 U. S. 21. An Indian tribe can not sue a State. 5 
Pet. 1. 

A State may sue a citizen of another State. 2 Tucker’s 
Const. 788. 

Evading the Eleventh Amendment by suing officers of the 
State. This subject has led to much controversy among the 


States , Courts and Judicial Powers of 


535 


judges and law writers. 2 Tucker’s Const. 789; 9 Wheaton 738; 
107 U. S. 711; 109 U. S. 446; 117 U. S. 52; 123 U. S. 443; 114 
U. S. 270. 

No suit against a State or its officers is allowed by the 
eleventh amendment to compel any affirmative action against 
the State or its officers. The State can not be so enforced; but 
where the State through its officers is taking affirmative action 
against a citizen, contrary to his constitutional right, he may 
either prevent it by injunction or redress it by an action 
against the officer, and, because the officer is without constitu¬ 
tional authority from the State to do the act, judgment will be 
allowed against the officer. 2 Tucker’s Const. 791. 

Can a citizen assign his claim to his own State, in order for 
it to sue another State? Can a foreign State sue a State of 
this Union? See 2 Tucker’s Const. 792, 797. 

Can jurisdiction be conferred on inferior courts as to Am¬ 
bassadors, etc., or is that of the Supreme Court exclusive ? See 
Tucker’s Const. 798; Story Const. 1699; 2 Dale 297; 1 Cranch 
137; 1 Wheaton 337; 111 U. S. 252, 449. 

Powers of States to Regulate Suits in Own Courts 

The following is from decisions of Supreme Court: 

It may be conceded in a general way that a State may restrict the 
right of a foreign corporation to sue in its courts. Bank of Augusta 
v. Earle, 13 Pet. 519, 589-591; Angle American Provision Co. v. Davis 
Provision Co., 191 U. S. 373. And in the same general way it may be 
conceded that a State may restrict the right of such corporations to 
engage in business within its limits. Paul v. Virginia, 8 Wall. 168; 
Hooper v. California, 155 U. S. 648. But the power so to deal with 
these subjects, like all other state power, can only be exerted within 
the limitations which the Constitution of the United States places upon 
state action. Missouri v. Lewis, 101 U. S. 22, 30; Blake v. McClung, 
172 U. S. 239, 256; Chambers v. Baltimore & Ohio R. R. Co., 207 U. S. 
142, 148; Western Union Telegraph Co. v. Kansas, 216 U. S. 1, 33; 
Southern Railway Co. v. Greene, 216 U. S. 400, 413. 

When a corporation goes into a State other than that of its origin 
to collect, according to the usual or prevailing methods, the purchase 
price of merchandise which it has lawfully sold therein in interstate 
commerce, it is there for a legitimate purpose of such commerce, and 
the State can not, consistently with the limitation arising from the 
commerce clause, obstruct or hamper the attainment of that purpose. 
If it were otherwise, the purpose of the Constitution to secure and 
maintain the freedom of commerce by whomsoever conducted could be 
largely thwarted by the States and the commerce itself seriously 
crippled. 

We are thus brought to the question whether the particular condi¬ 
tions imposed by this statute can be sustained when applied to rights 
of action like that disclosed in the present case. Without doubt a 


536 


States, Division of Territory of 


foreign corporation seeking to enforce such a right in the courts of a 
State may be required to conform to the prevailing modes of proceeding 
in those courts and to submit to the usual rules respecting costs, the 
giving of security therefor (see Blake v. McClung, 172 U. S. 239, 256), 
and the like. 235 U. 8. 203 , 201 h 

The Supreme Court of the United States has jurisdiction to 
establish disputed boundary lines between States and it has 
exercised it in many cases. It would be of no benefit to give 
the cases or excerpts therefrom. Disputed boundary lines be¬ 
tween States and nations has been a great source of war. Our 
constitution created a tribunal and gave it jurisdiction to settle 
peacefully and judicially such disputes, so far as the States are 
concerned. 

Division of One State Into Two and Adjustment of Debts 

The Supreme Court has thus spoken on this subject: 

The general rule stated in Hartman v. Greenhow, 102 U. S. 672, to 
the effect that where a State is divided into two or more States, in the 
adjustment of liabilities between each other, the debts of the parent 
State should be ratably apportioned among them, is essentially quali¬ 
fied by the authorities there quoted, in this, that a special agreement 
between the two States in respect of the assumption of a proportion of 
the debt as it existed before the separation, takes the case out of the 
general rule. 209 U. 8. 528. 

An agreement between States, such as this special agreement in 
respect to the proportion of the debt of Virginia which was to be as¬ 
sumed by the State of West Virginia, when consented to by Congress, 
binds the citizens of both States, and is irrevocable by either party. 
Where the legislature of either has attempted to impair the obliga¬ 
tion of a compact, it has been held void under the Constitution of the 
United States. Greene v. Biddle, 8 Wheat. 1; Rhode Island v. Massa¬ 
chusetts, 12 Peters, 748, and cases cited. 209 U. 8. 529. 

On May 4, 1908, the Chief Justice announced the following 
decree in the suit between Virginia and West Virginia: 

This cause having been heard upon the pleadings and accompany¬ 
ing exhibits, it is, on consideration, ordered that it be referred to a 
special master, to be hereinafter designated, to ascertain and report 
to the court: 

1. The amount of the public debt of the Commonwealth of Vir¬ 
ginia on the first day of January, 1861, stating specifically how and in 
what form the same was evidenced, by what authority of law and for 
what purposes the same was created, and the dates and nature of the 
bonds or other evidence of said indebtedness. 

2. The extent and value of the territory of Virginia and of West 
Virginia June 20, 1863, and the population thereof, with and without 
slaves, separately. 

3. All expenditures made by the Commonwealth of Virginia within 
the territory now constituting the State of West Virginia since any 
part of the debt was contracted. 


States , Actions and Suits Against 537 

4. Such proportion of the ordinary expenses of the government of 
Virginia since any of said debt was contracted, as was properly assign¬ 
able to the counties which were created into the State of West Virginia 
on the basis of the average total population of Virginia, with and with¬ 
out slaves, as shown by the census of the United States. 

5. And also on the basis of the fair estimated valuation of the 
property, real and personal, by counties, of the State of Virginia. 

6. All moneys paid into the treasury of the Commonwealth from the 
counties included within the States of West Virginia during the period 
prior to the -admission of the latter State into the Union. 

7. The amount and value of all money, property, stocks and credits 
which West Virginia received from the Commonwealth of Virginia, not 
embraced in any of the preceding items and not including any property, 
stocks or credits which were obtained or acquired by the common¬ 
wealth after the date of the organization of the restored government of 
Virginia, together with the nature and description thereof. 209 U. 8. 
534, 535, 536. 

The special master reported and a final decree rendered and 
West Virginia acceded to the decree of the Supreme Court, 
and its legislature has provided for the payment and satisfac¬ 
tion of the judgment or decree rendered against it in favor 
of Virginia. Had it not voluntarily acceded and provided for 
a payment of the judgment, could it have been compelled by 
the Federal Government or by Virginia to perform the judg¬ 
ment and decree of the court? Quere. 

States as Parties to Suit 

Since the adoption of the eleventh amendment, a state of the Union 
cannot be sued by any private person. But one state may sue another 
state, and a state, as plaintiff, may institute proceedings against an in¬ 
dividual, and in these cases the supreme court of the United States has 
original jurisdiction. Black on Constitutional Law, 143-4- 

Actions Against States 

In Hans v. Louisiana the general rule on this subject was concisely 
stated by Mr. Justice Bradley in the following terms: “To avoid mis¬ 
apprehension it may be proper to add that, although the obligations of 
a State rest for their performance upon its honor and good faith, and 
can not be made the subjects of judicial cognizance unless the State con¬ 
sents to be sued, or comes itself into court; yet where property or 
rights are enjoyed under a grant or contract made by a State, they 
cannot wantonly be invaded. Whilst the State cannot be compelled 
by suit to perform its contracts, any attempt on its part to violate prop¬ 
erty or rights acquired under its contract, may be judicially resisted; 
and any law impairing the obligation of contracts under which such 
property or rights are held is void and powerless to affect their enjoy¬ 
ment.” Miller's Const, pp. 368-9. 


538 


States, Actions and Suits Against 


Referring to the history of the 11th amendment the opinion in 123 
U. S. 443, Judge Campbell’s brief in 108 U. S. 76, and 140 U. S. 1, we 
remark that the mandatory language of that amendment is emphatic. 
“The judicial power shall not be construed,” etc. It is a constitutional 
rule of construction, to prevent by direct or indirect methods a suit 
against a state in a court of the United States. 

The state need not be sued by name, to bring the case within the 
mandate of the amendment. See cases supra, and 9 Wheat. 738, 1 Pet. 
110, 7 Pet. 627. 

In 123 U. S. 443, and the other cases mentioned, it is settled that if 
the act of a state officer is contrary to the constitution of the United 
States, he cannot protect himself against suit, by a claim that he rep¬ 
resents the state. But where an officer of the law does an act under 
valid and constitutional authority of the government of his state, in 
obedience to its order and in pursuance of his sworn duty as its officer, 
the act is not his own, it is the act of the state by its own will and mind 
and hand, the hand and will and mind of its own officer. If those by 
whom alone the state can act may be punished or prevented, it is folly 
to say the state is not punished and prevented. To enjoin the officers 
through whom only it can act is to enjoin the state; to sue these is to 
sue the state; ... If these are deterred by such proceedings from 
acting, it is deterred from action; is a state maimed and helpless; 
a State only in name; a sovereign without will or capacity to act at all. 

In 1 Pet. 110, 109 U. S. 446, and 107 U. S. 711, property held by state 
officers without right, and against the provisions of the constitution of 
the United States, was held to be beyond the reach of a federal court, 
because the officers held for the state, and to oust their possession 
would be to oust the possession of the State. This can not be done 
but by making the State a party, which the eleventh amendment for¬ 
bids. 1J,9 U. S. 176-7. 

Judge White in a dissenting opinion in S. Dak. v. N. C. 192 
U. S. 339, said: 

When 136 U. S. 211, and 134 U. S. 621, are considered, it seems to 
me clear that the decision now made not only is destructive of the in¬ 
herent rights of the states as protected by the Eleventh Amendment, 
but also strips the government of the United States of its rights as a 
sovereign belonging to it under the Constitution. As under the deci¬ 
sions referred to a suit between the United States and a state is within 
the grant of judicial power over controversies between states, it must 
follow that a suit by a state against the United States is also of that 
character. Now, as the ruling is that such a controversy may include 
the claim of a private individual, if only such claim be transferred to 
a state, it follows that a suit by a state against the United States on 
a claim of that character is within the grant of judicial power. Thus 
it has come to pass that any and every claim against the United States, 
whatever be its character, is enforceable against the United States if 
only a state chooses to acquire and prosecute its enforcement. It is no 
answer to suggest that such claims of private individuals are not 
iustifiable unless the law of the United States has caused them to be 
so, for if the constitutional grant of judicial power embraces such con¬ 
troversies as is now necessarily held, any restriction by Congress would 
be repugnant to the Constitution. 


States, Actions and Suits Against 


539 


My reason does not perceive how the principles which have been 
stated and the rulings of this court enforcing them are rendered in¬ 
applicable by the suggestion that, as the court may not inquire into 
the motives actuating a particular transfer of right, therefore it is 
without power to refuse to enforce in behalf of South Dakota the al¬ 
leged gift. This proceeds upon the assumption that the want of juris- 
dition to enforce a private claim against a state depends upon motive. 
But the absence of such jurisdiction rests upon the constitutional pro¬ 
hibition which addresses itself to the very nature of the cause of action 
and imposes upon the court the duty to inquire into it. The power of 
the court when such is the case, even in a case brought in this court by 
one of the states of the Union to enforce an alleged pecuniary right, is 
aptly illustrated by 127 U. S. 265. There the state of Wisconsin, hav¬ 
ing obtained a judgment against the defendant corporation in the 
courts of Wisconsin, availed of the original jurisdiction of this court to 
sue the defendant corporation to enforce the judgement. It was held 
that, as the judgment was for a penalty imposed by the laws of Wis¬ 
consin, and as penalties had no extraterritorial operation, the court 
would look at the origin of the rights upon which the judgment was 
based, and, doing so, declined to enforce the judgment. See also 188 
U. S. 14. If, as the result of merely a general rule of law against the 
extraterritorial operation of statutory penalties, this court looked 
beyond the judgment sued on by a state to the cause of action merged 
in the judgment, and refused relief, the court now must have the pow¬ 
er to look into the present cause of action and the origin of the rights 
asserted by the state of South Dakota. To do otherwise seems to me 
is but to declare that a general principle of law restricting the extra¬ 
territorial enforcement of penal statutes must be held to have more 
sanctity than the declared will of the people of the United States ex¬ 
pressed in the Eleventh Amendment. 

Actions Against Agencies of States 

Reference is made, however, to Kansas ex rel. Little v. University 
of Kansas, and the note to 29 L. R. A. 378, where state colleges, prison 
boards, lunatic asylums and other public instituions have been held to 
be agents of the State not liable to suit unless expressly made so by 
statute. 

But an examination of the cases cited, in any respect similar to this, 
will show that they involve questions of liability in a suit, rather than 
immunity from suit. Most of them were actions for torts committed, 
not by the public corporation itself, but by officers of the law. These 
public corporations were held free from liability in the suit, on the same 
ground that municipalities are held not to be responsible for the negli¬ 
gence of policemen, jailers, prison guards, firemen, and other agents 
performing governmental duties. Workman v. Mayor of N. Y., 179 
U. S. 556. 221 U. 8. 61,6 . 

A suit against a bank was sustained even though the State held part 
of the stock, Bank of U. S. v. Planters’ Bank of Georgia, 9 Wheat. 904. 
A tax collector was enjoined, where, under an unconstitutional law, 
he was about to sell the property of the taxpayer, Poindexter v. Green- 
how, 114 U. S. 270. An attorney general was restrained from suing 
to recover penalties imposed by an unconstitutional statute, Ex parte 


540 


States , Actions and Suits Against 


Young, 209 U. S. 123. Commissions have been enjoined from enforcing 
confiscatory rates, Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 
362; Smyth v. Ames, 169 U. S. 466; Proutt v. Starr, 188 U. S. 537. A 
state land commissioner was enjoined from proceeding, under an un¬ 
constitutional act, to cause irreparable damage to defendant’s property 
rights, Pennoyer v. McConnaughy, 140 U. S. 1. Commissions have been 
restrained from enforcing a statute which illegally burdened interstate 
commerce, McNeill v. Southern Ry., 202 U. S. 543; Railroad Commission 
v. Illinois Central R. R., 203 U. S. 335. 

Other cases might be cited which deny public boards, agents and 
officers immunity from suit. But the principle underlying the decision 
is the same. All recognize that the State, as a soverign, is not subject 
to suit; that the State can not be enjoined; and that the State’s officers, 
when sued, can not be restrained from enforcing the State’s laws or 
be held liable for the consequences flowing from obedience to the 
State’s command. 

But a void act is neither a law nor a command. It is a nullity. 
It confers no authority. It affords no protection. Whoever seeks to 
enforce unconstitutional statutes, or to justify under them, or to 
obtain immunity through them, fails in his defense and in his claim of 
exemption from suit. 221 U. 8. 644- 

If it were a suit directly against the State by name, it would be so 
palpably in violation of that Amendment that the court would prob¬ 
ably be justified in dismissing it upon motion; but the suit is not 
against the State, but against Adams individually, and if the requisite 
diversity of citizenship exist, or if the case arise under the Constitution 
or laws of the United States, the question whether he is so identified 
with the State that he is exempt from prosecution, on account of the 
matters set up in the particular bill, are more properly the subject of 
demurrer or plea than of motion to dismiss. This seems to have been 
the opinion of Chief Justice Marshall in Osborne v. Bank of the United 
States, 9 Wheat. 738, 858, wherein he makes the following observations: 
“The State not being a party on the record, and the court having juris¬ 
diction over those who are parties on the record, the true question is 
not one of jurisdiction, but whether, in the exercise of its jurisdiction, 
the court ought to make a decree against the defendant; whether they 
are to be considered as having a real interest, or as being only nominal 
parties.” Again, 180 U. S. 38: “But where the suit is against an in¬ 
dividual by name, and he desires to plead an exemption by reason of 
his representative character, he does not raise a question of jurisdic¬ 
tion in its proper sense. . . . But whether this is a question of 

jurisdiction or not, we think it should be raised either by demurrer to 
the bill or by other pleadings in the regular progress of the cause. 
Motions are generally appropriate only in the absence of remedies by 
regular pleadings and can not be made available to settle important 
questions of law.” Cases were cited, and it was further observed that 
in Fitts v. McGhee, 172 U. S. 516, the question whether the officers 
proceeded against “were representatives of the State was disposed of 
upon answers filed.” 209 U. 8. 486. 

“A State can only act or be proceeded against through its officers. 
If a decree could be entered against the State of Rhode Island enjoin¬ 
ing prosecutions under this act, it could only operate against the 


States, Actions and Suits Against 


541 


State through enjoining these defendants. An order restraining the 
Attorney General and his assistant from the enforcement of this statute 
is an order restraining the State itself. The present suit, therefore, 
is as much against the State of Rhode Island as if the State itself 
were named a party defendant.” After referring to In re Ayers, and 
Fits v. McGhee, and upon a review of the cases, the court proceeded: 
“The defendants Stearns and Greenough hold no special relation to 
the act of June 1, 1902. They are not specially charged with its ex¬ 
ecution. They are not thereby constituted a board or commission with 
administrative powers, nor are they as individuals, and apart from the 
official authority under which they act, threatening to seize the prop¬ 
erty of the complainant, or to commit any wrong or trespass against 
its personal or property rights. They have no other connection with 
this statute than the institution of formal judicial proceedings for its 
enforcement in the courts of the State in the name and behalf of the 
State. Upon reason and authority the present bill is a suit against the 
State of Rhode Island, within the meaning of the Eleventh Amendment 
to the Constitution of the United States.” 119 Fed. Rep. 790-5; 209 U. 8. 
201 . 

Harlan, J., dissenting in Young’s case, said: 

Upon the fullest consideration and after a careful examination of 
the authorities, my mind has been brought to the conclusion that no 
case heretofore determined by this court requires us to hold that the 
Federal Circuit Court had authority to forbid the Attorney General of 
Minnesota from representing the State in the mandamus suit in the 
state court, or to adjudge that he was in contempt and liable to be 
fined and imprisoned simply because of his having, as Attorney Gen¬ 
eral, brought that suit for the State in one of its courts. On the con¬ 
trary, my conviction is very strong that, if regard be had to former 
utterances of this court, the suit of Perkins and Shepard in the Fed¬ 
eral court, in respect of the relief sought therein against Young, in 
his official capacity, as Atorney General of Minnesota, is to be deemed— 
under the Ayers and Fitts cases particularly—a suit against the State 
of which the Circuit Court of the United States could not take cogni¬ 
zance without violating the Eleventh Amendment of the Constitution 
Even if it were held that suits to restrain the instituting of actions 
directly to recover the prescribed penalties would not be suits against 
the State, it would not follow that we should go further and hold that 
a proceeding under which the State was, in effect, denied access, by its 
Attorney General, to its own courts, would be consistent with the 
Eleventh Amendment. A different view means, as I think, that al¬ 
though the judicial power of the United States does not extend to any 
suit expressly brought against a State by a citizen of another State 
without its consent or to any suit the legal effect of which is to tie 
the hands of the State, although not formally named as a party, yet 
a Circuit Court of the United States, in a suit brought against the 
Attorney General of a State may, by orders directed specifically against 
that officer, control, entirely control, by indirection, the action of the 
State itself in judicial proceedings in its own courts involving the con¬ 
stitutional validity of its statutes. 209 U. 8. 203. 


542 


States, Actions and Suits Against 


The plaintiff sued the Clemson Agricultural College of South Car¬ 
olina, for damages to his farm, resulting from the College having built 
a dyke which forced the waters of the Seneca River across his land, 
whereby the soil had been washed away and the land ruined for agri¬ 
cultural purposes. There was no demurrer, but the defendant filed 
what was treated as a plea to the jurisdiction in which it averred 
that it owned no property, and had constructed the dyke as a public 
agent only, by authority of the State, on land belonging to the State, 
By stipulation the hearing was confined solely to the question of juris¬ 
diction, and after considering the evidence the complaint was dis¬ 
missed. 

That ruling and the assignments of error thereon raise the question 
as to whether a public corporation can avail itself of the State’s im¬ 
munity from, suit, in a proceeding against it for so managing the land 
of the State as to damage or take private property without due process 
of law. 

With the exception named in the Constitution, every State has abso¬ 
lute immunity from suit. Without its consent it can not be sued in 
any court, by any person, for any cause of action whatever. And, 
looking through form to substance, the Eleventh Amendment had been 
held to apply, not only where the State is actually named as a party 
defendant on the record, but where the proceeding, though nominally 
against an officer, is really against the State, or is one to which it is an 
indispensable party. No suit, therefore, can be maintained against a 
public officer which seeks to compel him to exercise the State’s power 
of taxation; or to pay out its money in his possession on the State’s 
obligations; or to execute a contract, or to do any affirmative act which 
affects the State’s political or property rights. 221 U. S. 6^1, 6^2. 

But immunity from suit is a high attribute of sovereignty—a pre¬ 
rogative of the State itself—which can not be availed of by public 
agents when sued for their own torts. The Eleventh Amendment was 
not intended to afford them freedom from liability in any case where, 
under color of their office, they have injured one of the State’s citizens. 
To grant them such immunity would be to create a privileged class 
free from liability for wrongs inflicted or injuries threatened. Public 
agents must be liable to the law, unless they are to be put above the 
law. Nor how “can the principles of individual liberty and right be 
maintained if, when violated, the judicial tribunals are forbidden to 
visit penalties upon individual defendants. . . . whenever they in¬ 
terpose the shield of the State. . . . The whole frame and scheme 

of the political institutions of this country, State and Federal, protest” 
against extending to any agent the sovereign’s exemption from legal 
process. Poindexter v. Greenow, 114 U. S. 270, 291. 

The many claims of indemnity from suit have therefore been uni¬ 
formly denied, where the action was brought for injuries done or 
threatened by public officers. If they were indeed agents, acting for 
the State, they—though not exempt from suit—could successfully de¬ 
fend by exhibiting the valid power of attorney or lawful authority 
under which they acted. Cunningham v. Macon & Brunswick R. R., 
109 U. S. 446, 452. But if it appeared that they proceeded under an un¬ 
constitutional statute their justification failed and their claim of im¬ 
munity disappeared on the production of the void statute. Besides, 


States , Actions by U. S. Against 


543 


neither a State nor an individual can confer upon an agent authority 
to commit a tort so as to excuse the perpetrator. In such cases the 
law of agency has no application—the wrongdoer is treated as a prin¬ 
cipal and individually liable for the damages inflicted and subject to 
injunction against the commission of acts causing irreparable injury. 
221 U. 8. 642, 643. 

Actions Against State by United States. 

The case, 143 U. S. 621, is in point, and upon many aspects of the 
question very suggestive. That was a suit brought by the United 
States against the state of Texas to determine the title to a tract, 
called the county of Greer, which was claimed by the state to be within 
its limits and a part of its territory, and by the United States to be 
outside the state of Texas and belonging to the United States. The 
jurisdiction of this court was challenged, but was sustained. After 
referring to the provisions of the Constitution and the judiciary act 
of 1789, Mr. Justice Harlan, speaking for the court, said: “The 
words in the Constitution, ‘in all cases ... in which a state 
shall be party, the Supreme Court shall have original jurisdiction,’ 
necessarily refer to all cases mentioned in the preceding clause in 
which a state may be made, of right, a party defendant, or in which 
a state may, of right, be a party plaintiff. ... It is, however, 
said that the last words quoted refer only to suits in which a state is 
a party, and in which, also, the opposite party is another state of the 
Union, or a foreign state. This can not be correct, for it must be 
conceded that a state can bring an original suit in this court against 
a citizen of another state. 127 U. S. 265, 287. Besides, unless a state 
is exempt altogether from suit by the United States, we do not per¬ 
ceive upon what sound rule of construction suits brought by the 
United States in this court—especially if they be suits the correct de¬ 
cision of which depends upon the Constitution, laws or treaties of the 
United States—are to be excluded from its original jurisdiction as 
defined by the Constitution. That .instrument extends the judicial 
power of the United States ‘to all cases,’ in law and equity, arising 
under the Constitution, laws and treaties of the United States, and to 
controversies in which the United States shall be a party, and confers 
upon this court original jurisdiction ‘in all cases’ ‘in which a state 
shall be party,’ that is, in all cases mentioned in the preceding clause 
in which a state may, of right, be made a party defendant, as well as 
in all cases in which a state may, of right, institute a suit in a court 
of the United States. The present case is of the former class. We 
can not asume that the framers of the Constitution, while extending 
the judicial power of the United States to controversies between two 
or more states of the Union, and between a state of the Union and 
foreign states, intended to exempt a state altogether from suit by the 
general government. They could not have overlooked the possibility 
that controversies, capable of judicial solution, might arise between 
the United States and some of the states.” 185 U. 8. 384-5. 

Actions by States. 

In the capacity of qwcm-sovereign the state has an interest inde¬ 
pendent of and behind the titles of its citizens, in all the earth and air 


544 


States, Actions By 


within its domain. It has the last word as to whether its mountains 
shall be stripped of their forests and its inhabitants shall breathe 
pure air. It might have to pay individuals before it could utter that 
word, out with it remains the final power. The alleged damage to the 
state as a private owner is merely a makeweight, and we may lay on 
one side the dispute as to whether the destruction of forests has led 
to the gullying of its roads. 

The caution with which demands of this sort, on the part of a 
state, for relief from injuries analogous to torts, must be examined, 
is dwelt upon in 200 U. S. 496. But it is plain that some such demands 
must be recognized, if the grounds alleged are proved. When the 
states by their union made the forcible abatement of outside nuisances 
impossible to each, they did not thereby agree to submit to whatever 
might be done. They did not renounce the possibility of making rea¬ 
sonable demands on the ground of their still remaining quasi-sovereign 
interests; and the alternative to force is a suit in the Supreme Court. 
180 U. S. 208. 

Some peculiarities necessarily mark a suit of this kind. If the 
state has a case at all, it is somewhat more certainly entitled to specific 
relief than a private party might be. It is not lightly to be required 
to give up quasi-sovereign rights for pay; and, apart from the difficulty 
of valuing such rights in money, if that be its choice it may insist 
that an infraction of them shall be stopped. . 

It was said by Judge Harlan that when the Constitution gave to 
this court original jurisdiction in cases “in which a state shall be a 
party,” it was not intended to authorize the court to apply in its 
behalf, any principle or rule of equity that would not be applied, under 
the same facts, in suits wholly between private parties, and if under 
the evidence, a court of equity would not give the plaintiff an injunc¬ 
tion, then it ought not to grant relief, under like circumstances, to the 
plaintiff, because it happens to be a state possessing some powers of 
sovereignty. 206 U. S. 237-8. 

All the judges who took part in the decision in the Wheeling Bridge 
Case treated the suit as brought to protect the property of the State 
of Pennsylvania. Mr. Justice McLean, delivering the opinion of the 
majority of the court said: “In the present case, the State of Pennsyl¬ 
vania claims nothing connected with the exercise of its sovereignty. 
It asks from the court a protection of its property on the same ground 
and to the same extent as a corporation or individual may ask it.” 
13 How. 560-1. So Chief Justice Taney, who dissented from the judg¬ 
ment, said: “She proceeds, and is entitled to proceed, only for the 
private and particular injury to her property which this public nui¬ 
sance has occasioned.” 13 How. 589. And Mr. Justice Daniel, the 
other dissenting judge, took the same view. 13 How. 596. 

Mississippi v. Johnson, 4 Wall. 475, and Georgia v. Stanton, 6 Wall. 
50, were cases of unsuccessful attempts by a state, by a bill in equity 
against the President or the Secretary of War, described as a citizen of 
another state, to induce this court to restrain the defendant from ex¬ 
ecuting, in the course of his official duty, an act of Congress alleged to 
unconstitutionally affect the political rights of the state. 

Texas v. White, 7 Wall. 700, Florida v. Anderson, 91 U. S. 667, and 
Alabama v. Burr, 115 U. S. 413, were suits to protect rights of prop¬ 
erty of the state. In Texas v. White, the bill was maintained to assert 


States, Actions By 


545 


the title of the State of Texas to bonds belonging to her, and held by 
the defendants, citizens of other states, under an unlawful negotiation 
and transfer of the bonds. In Florida v. Anderson, the suit concerned 
the title to a railroad, and was maintained because the State of 
Florida was the holder of bonds secured by a statutory lien upon the 
road, and had an interest in an internal improvement fund pledged to 
secure the payment of those bonds. In Alabama v. Burr, the object 
of the suit was to indemnify the State of Alabama against a pecuniary 
liability which she alleged that she had incurred by reason of fraud¬ 
ulent acts of the defendants; and upon the facts of the case the bill was 
not maintained. 

In Pennsylvania v. Quicksilver Co., 10 Wall. 533, an action brought 
in this court by the State of Pennsylvania was dismissed for want of 
jurisdiction, without considering the nature of the claim, because the 
record did not show that the defendant was a corporation created by 
another state. 

In Wisconsin v. Duluth, 96 U. S. 379, the bill sought to restrain the 
improvement of a harbour on Lake Superior, according to a system 
adopted and put in execution under authority of Congress, and was for 
that reason dismissed, without considering the general question 
whether a state, in order to maintain a suit in this court, must have 
some proprietary interest that has been affected by the defendant. 
127 U. 8. 296- 7. 


f- i 



INDEX 


Page 

ABOLITION of Slavery ...449-454 

Party in 1835 . 417 

Societies created trouble .... 421 
ABOLITIONISTS’ Activities 

. 428-431 

Criticism by Calhoun .428-9 

Described by Calhoun . 435 

Of England active in America 428 
ABSOLUTE Monarchy, defined 

by Justice Miller . 46 

ABUSE of power by Govern¬ 
ment prevented . 91 

ACQUIESCENCE in Construc¬ 
tion of the Constitution.. 275 
ACTION by Europe as to Slav¬ 
ery . 428 

ACTIONS Against Agencies of 

States .539-543 

Against States .534, 537-539 

By United States . .. 543 

Against U. S. Government 201-202 

By State .543-545 

Against State regulated .... 217 
Against United States, 201 et seq. 
United States as a party to.. 202 
ACTIVITIES of Abolitionists 

.428-431 

ACTS of Nullification . 362 

Embargo .335-337 

Of Reconstruction, copy of 481-486 
ADAMS and Jefferson, last cor¬ 
respondence between 

them . 441 

J. Q., claim of two Constitu¬ 
tions* . 282 

The Elder, view of proposed 

Constitution . 232 

The Younger, view of pro¬ 
posed Constitution . 237 

To Jefferson on the origin of 

Government . 50 

ADAMS’ and Jefferson’s opin¬ 
ion of the crowned heads 
of their acquaintance... 69 
ADDRESS, First Inaugural of 

Thomas Jefferson 1 ... .308-311 
Of General Assembly on Vir¬ 
ginia Resolution of 1798, 

excerpts from . 333-335 

Washington’s Farewell ..298-308 
ADJUSTMENT of Debts When 
One State is Divided into 

Two .536-537 

ADOPTION or Ordination of 

Constitution .247-252 


ADVANTAGES of Federaf^ 

Government .89-90 

AFRICAN servitude existed in 
all States when Consti¬ 
tution adopted . 413 

AGENCIES of States, Actions 

Against .539-543 

ALIEN and Sedition Laws. .321-323 
Enemies and friends defended 327 
Protected by Constitution ... 326 
ALLIANCES (with foreign na¬ 
tions) (Washington) . . . 306 
AMBASSADORS, duty of Pres¬ 
ident to receive ........ 212 

AMENDMENTS and Changes 

of Constitution .189-190 

Of English and American Con¬ 
stitutions compared 67 et seq. 
To Constitution of United 

States (copy of) .216-220 

To Constitution .66-67 

First Ten, objects and pur¬ 
pose of. Introductory IX & X 
First 10, part of ratification 

284 et seq. 

To Federal Constitution, how 

proposed and ratified .. . 214 
Part of Va. ratification ...331-2 

AMERICA and England, Dema¬ 
goguery in . 128 

Democracy the strength of 128-130 
Is carrying Dante’s Lamp .. 130 
Leader of enlightened nations 76 
Thirteen United States of, 
Unanimous Declaration of 

22-26 

AMERICAN COLONIES, his¬ 
tory of .18 et seq. 

And British Constitutions, dif¬ 
ferences between 264-267 
And English Governments 

Compared .58-62 

Commonwealth, what it has 

taught Europe .87-88 

Form of Government.149-150 

AMERICAN GOVERNMENT, 

compacts in .. .*..107-108 

Defined by Mr. Root . . .49 et seq. 
Distinguished from others 

71-74; 146-149 

Dual form of . 149 

Dual of compound nature of 149 
Faults of named by Bryce.... 126 

Form and nature of .91-105 

How ordained.153-154 


547 









































548 


INDEX 


Page 

AMERICAN GOVERNMENT, 
is it Federal, National or 

Republic? .159-161 

Not a compact nor league 108-109 
Not a republic nor democracy 161 

Powers conferred on .161-162 

Process by which it was 

found ...... Introductory V 

Republican in form .145-146 

Sovereign Powers of . 150-153 

The means between Monarchy 

and Anarchy Preface III 
Trophies and triumphs of 143-145 
Ship of state, political chart 

for .297-298 

Union, nature of . 202 

AMNESTY and pardon issued 
by Johnson to all South¬ 
erners . 495 

ANARCHISM .349-351 

ANARCHY and Rebellion _ 123 

ANCIENT and modern nations 

compared . 143 

AN CIENT Governments — by 
whom established or cre¬ 
ated .154-155 

ANGELS, if men were angels, 

no government necessary 178 
ANGLICAN Monarchial party 

threatened . 241 

ANTHONY Amendment to Con¬ 
stitution .66-67, 220 

APOTHEGMS of Jefferson .... 53 

APPROPRIATIONS, necessity 

for . 210 

ARISTOCRACIES, Government 

of 116-117 

ARISTOTLE’S ideas of mon¬ 
archies . 112 

ARMS, right to bear . 216 

ARMY and Navy, power to 

raise and maintain .210 

Commander-in-chief of. 212 

Standing, unnecessary . 325 

ARROGANCE of Europe as to 

Ameriofen Government. .87-88 
ARTICLES in addition to and 
amendments of Constitu¬ 
tion of United States 

(copy of) .216-220 

ARTICLES OF CONFEDERA¬ 
TION .27-38 

A compact . 37 

And Constitution of U. S. 

compared .. Introductory VII 
And Continental Congress . .20, 21 


Page 

ARTICLES OF CONFEDERA¬ 
TION, a rope of sand. 

Introductory VIII 

Copy of.27 et seq. 

Description of by Supreme 

Court of United States .. 34 

Hamilton’s criticism of.36 et seq. 

How ratified . 37 

Inception of Union . 21 

Judge Black’s description of 35 
Names and list of those who 

signed them .33-34 

Objects and purposes .. .34 et seq. 

Purposes of .Introductory VI 

Transformed into Constitu¬ 
tion .35-36 

ATTEMPT to change form of 

Government .105-107 

ATTORNEYS for defendants 

guaranteed . 216 

AUTHORITY for the right of 

secession .378-393 

Of several departments of 

Government . 187 

Of Government must be ac¬ 
knowledged and obeyed 

(Washington) . 302 

AUTOCRACY and Democracy 

compared .134-135 

Montesquieu’s description of 134 
AVERTING secession,—how it 

could have been done 398-399 

AXIOMS of Jefferson . 53 

BAGEHOT’S comparison of 
American Congress and 
English Parliament 62 et seq. 
Description of cabinet and 
presidential Government 

63 et seq. 

Description of some of the 

English rulers . 69 

Views of bureaucratic govern- 

ernment . 117 

BAIL shall not be denied or ex¬ 
cessive . 217 

BALANCE OF POWER be¬ 
tween departments of 

Government . 188 

Doctrine of.312-13 

How preserved . 339 

BALANCE and checks 177 et 

seq.; 188-189; 190-198 
BANCROFT’S views as to 

states rights . 521 

BANKS, power of congress to 

establish . 275 










































INDEX 


549 


BAPTISMAL name of child .. 340 
BAR of the Supreme Court, se¬ 
cession at .397-398 

BELIEF in secession, honest 376-377 
BELLAMY’S “Looking Back¬ 
ward’ ’ 354 

BIBLE of political philosophy 72 
BILLS OF RIGHTS, first ten 
amendments. Introductory 

IX and X 

Madison’s and Jefferson’s cor¬ 
respondence as to . 291 

BILLS of attainder prohibited 210 
Or declarations of rights 291-297 
BIRTH of American nation ... 99 

BLACK’S idea of sovereignty 56 

On bill of rights . 296 

BLAINE’S comparison of Clay 

and Webster . 348 

Opinion as to slavery. 426 

BOLSHEVISM in Russia ...118-119 
BOMBARDMENT of Fort Sum¬ 
ter . 410 

BOOKS as to history of Govern¬ 
ment (Jefferson) . 51 

BOSTON’S Nullification Acts 

(Webster) . 377 

BRITISH and American Consti¬ 
tutions, differences be¬ 
tween .264-267 

Government transformed into 
American Government 

Introductory V 

BROAD and strict constructions 

of Constitution .280-281 

Constructionists .280-1 

BROTHERHOOD of men, uni¬ 
versal .352-359 

BROWN’S (Judge) description 

of socialism . 357 

BRYCE’S comparison and con¬ 
trast of English and 
American Government 

59 et seq. 

Comparison of Republican and 
Democratic parties of to¬ 
day with Tories and Lib¬ 
erals of yesterday 342 et seq. 
Description of cabinet Gov¬ 
ernment . 72 

Description of political parties 

in America . 338 

Description of tyrannical 

Government . 122 

Description of United States 

Senate . 123 


Page 

BRYCE’S Description of faults 

of American Government. 126 
Description of local self-gov¬ 
ernment .137-138 

Says England should follow 

America’s example, .... 266 
Statement of right of slavery 

in America. 422 

BUCHANAN’S actions after 

Lincoln’s election . 400 

BUREAUCRACY, Government 

by .117-118 

BURKE and Fox compared .. . 349 
BURR and Jefferson,—contest 

for President (note) .... 242 
CABINET and Presidential 

Government . 63-71 

Government, described by 

Bagehot.63 et seq. 

In United States, mere ad¬ 
visers of Government... 80 
Real Government in England 80 

System of Government . 59 

CALHOUN compares State and 

United States . 513 

Defines objects and purposes 

of Constitution . 227 

CALHOUN’S Comparison of 

Confederation and Union 38 
Criticism of abolitionists ..428-9 
Description of abolitionists. . 435 
Difference between Federal 
Government and Confed¬ 
eracy . 110 

History of slavery . 415 

Idea as to sovereign power. . 56 

Idea of the relation of State 

and Federal Government 96 

Love for the Union. 464 

Plan to save the Union .... 385 
Resolution as to the character 

of the Constitution . 260 

The right of secession.395-6 

Views as to character of Gov¬ 
ernment . 161 

Views as to ordination and 

character of Constitution 247 

Views as to slavery. 436 

Views as to the Constitution 

being a compact . 259 

CALUMNY and usurpation com¬ 
pared . 334 

CAMPBELL, J. ’s account of 
conference with Seward 
as to Fort Sumter. 406 








































550 


INDEX 


Page 


CANNING’S connection with 

Monroe Doctrine . 317 

CAPITAL and labor, conflict be¬ 
tween . 356 

CARTHAGE and Rome and 
Sparta, Montesquieu’.s de¬ 
scription and comparison 125 


CAUSE OF SECESSION, Im¬ 


mediate .399-402 

Not slavery .393-394 


The War Between the States 

431-432 


Tending to destruction of the 

Union .176-177 

CENTRALIZATION OF POWER 89 

Danger of .180-181 

CENTRIFUGAL and Centrip¬ 
etal forces in Govern¬ 
ment .113-114 

CHANGE of form of American 

Government, threatened. 105 
CHANGES and amendments of 

Constitution .189-190 

CHANGING form of Govern¬ 
ment, attempt to.105-107 

CHARACTER and nature of the 

Constitution ....256-258; 264 
CHARACTERISTICS of Amer¬ 


ican Government by Mr. 

Root.49 et seq. 

CHART, political for American 

ship of State .297-298 

CHART A, MAGNA (copy of).. 1-17 
CHARTERS, English, and Con¬ 
stitution, American, com¬ 
pared .Introductory VI 

Of Governments described by 

Madison . 103 

CHECKS AND BALANCES 


177 et seq.; 188-189; 190-198 
Wilson ’ s, Washington’s, 
Adams’ and Jefferson’s 
views compared . . . 190 et seq. 
CHURCHES and religions, vol¬ 
untary support of . 129 

CITIZENS of one State and an¬ 
other State, controversies 

between .534-535 

Of State and United States 

defined . 218 

Privileges and immunities of 213 

Rights the Constitution guar¬ 
antees . 217 

CIVIL rights cases . 453 

CLAN Government in Europe 

and America . 76 


Page 

CLASSIFICATION of powers 
of Government in United 


States . 165 

CLAY and Webster compared 

by Blaine . 348 

Politics of.348-349 

Party, Whig . 341 

On nullification .369-70 

CODES, differentiated from Con¬ 
stitutions . 222 


COERCION, alternative of se¬ 
cession . 383 

Of States . 286 

Right of denied . 382 

COKE’S description of Magna 

Charta. 2 

COLONIAL Government.21, 22 

COLONIES, the .18-22 

Common-law as to . 328 

History of.. 18 et seq. 

Mere corporation . 18 

Never united. 18 

President Monroe’s reference 


to .. 19 

Their relation as described by 
Supreme Court of United 

States . 20 

Their relation to each other 

and to England . 19 

Their relation to Great Brit¬ 
ain . 386 

Their relation to the State .. 19 

Union of ..18-19 

COLONISTS, questions which 
confronted them as to 
forming Government ... 50. 

Rights claimed by them 

Introductory VI 
COMMERCE, regulation of . .. 526 
COMMON law, no part of Fed¬ 
eral powers . 167 

Of colonies and U. S.328 

Rules of guaranteed in certain 

cases . 217 


COMMONWEALTH, defined by 

Mr. Bouviere . 48 

COMMUNISM, the author’s 

view of ... 359 


COMPACT, American Govern¬ 
ment is not .108-109 

Articles of Confederation a.. 37 

Between the States, is the 

Constitution such? ... 258-264 
In United States Government 

107-108 


76 














































INDEX 


551 


Page 

COMPACT of the Constitution 

(Madison) .107-108 

COMPARING and contrasting 
American and English 

Governments .58 et seq. 

Of Governments by Author 

146 et seq. 

Of Autocracy and Democracy 

• 134-135 

Of Congress and Parliament 62-63 
Of English and American 

Governments .58-62 

Of Republics and Monarchies 111 
Of State and Federal Govern¬ 
ments .510-512 

Of United States Constitution 

with others .267-268 

COMPENSATION for property 

taken, secured . 216 

COMPOUND Government defin¬ 
ed by Madison . 101 

Nature of United States Gov¬ 
ernment . 149 

COMPROMISE measures of 

1850 .444-445 

Missouri .416, 439-444 

COMPROMISES of the Consti¬ 
tution .268-269 

CONCURRENT and exclusive 

Governmental powers ... 167 
CONDITION of States prior to 

Constitution .507-508 

CONFEDERACIES, Govern¬ 
ments in . 109 

CONFEDERACY and Federal 
Government, contrasted 

110-111 

Of 1861 . 480-481 

(Southern) how formed .... 389 

CONFEDERATE Constitution, 

notes on.479-480 

States, Constitution of .. . 460-465 
Of America, copy of Constitu¬ 
tion of .467-479 

Restoration of to all rights 

and privileges .. . .498 et seq. 

Status of laws of. 481 

CONFEDERATION and consti¬ 
tutional Government com¬ 
pared and contrasted 

Introductory VIII 
And Union compared and con¬ 


trasted . 22 

Difference between . 38 

Articles of .27-38 


Page 

CONFEDERATION, Articles of, 
and Continental Congress 


20, 21 

Congress of . 38 

Defects and vices of .36-37 

Illegally but necessarily de¬ 
stroyed . 206 

CONFLICT between State and 
Federal laws.512-13 


Between State and Federal 
powers in United States 

164-165 

CONGRESS and Parliament 

compared .62-63 

And the President, powers 

compared . 61 et seq. 

Conflict with President John¬ 
son . 81 

Continental, and articles of 

Confederation...20, 21 

Inception of Union . .. 21 

Each house judge of elections, 
qualifications of members, 
determines its rules and 

keeps its Journals . 208 

How composed . 207 

Office of Confederation and 

the Constitution . 38 

Of the Confederation . 38 

Powers of enumerated in Con¬ 
stitution .209, 210 

Representation in, regulated 218 

When it assembles. 208 

CONGRESSIONAL construction 

of Constitution . 276 

CONGRESSMEN, number of, 

how determined . 207 

CONSOLIDATED and Federal 
Governments, tendencies 

of .. 110 

CONSTITUTION of U. S., copy 

of .207-220 

Acquiescence in construction 

of . 275 

Agreed upon and proposed . . 229 
Amendments and changes of 

189-190; 217-220 
And statutes, differences be¬ 
tween . 222 

And treaty laws. 221 

An outgrowth of old institu¬ 
tions and not of new de¬ 
vices .224-226, 

A grant of powers. 221 

The Supreme Law . 221 

Being converted into codes .. 157‘ 













































552 


INDEX 


Page 

CONSTITUTION, broad and 

Strict constructions of 280-281 
By whom adopted or ordained 

247-252 

Compromises of .268-269 

Condition of States prior to 

507-508 

Congressional construction of 276 
Construction of generally .269-275 

Defined .220-221 

Development and evolution of 

228-229 

Establish machinery of Gov¬ 
ernment . 92 

Federal, nature and character 

of . 264 

Friends and enemies of .. 253-254 
Hostility and opposition to 

237-238 

How and when made.244-245 

Immutability of . 282 

Intent to be sought in con¬ 
struction of . 278 

In war and in peace ... .64 et seq. 
Is it a compact between the 

States .258-264 

Jefferson’s views as to. .. .233-236 

Keys to construction of. 276 

Laws made by direct vote of 

people . 529 

Legislative construction of .. 277 

Madison, the father of . 245 

Makers of .252-255 

Making of.. 237 

Motives which inspired mak¬ 
ers of . 255-256 

Must change . 267 

Nature and character of . .256-258 

Objections to .238-243 

Objections to ratification of 

288-291 

Of the Confederate States 460-465 
Of the Confederate States of 

America (copy of) ...467-479 
List of those who signed it .. 479 

Notes on .'. .479-480 

Object and purpose of. 460 et seq. 
A compact (Madison) ....107-108 
Amendments to (copy of) 216-220 
Compared with others ...267-268 

Not a compact (Black) . 108 

Not what any of his friends 

desired ^. 339 (note) 

The means between Monarchy 
and Anarchy .Preface III 


Page 

CONSTITUTION, opinion and 
eulogies of eminent men 

as to.229-233 

Original draft of, preserved 

in archives. 230 

How ratified . 214 

Origin of .222-224 

Progressive constructions 281-282 

Prototypes of . 226 

Purposes and objects of .. 226-228 

Ratification of .283-288 

States as parties to.518-519 

Style and syntax due to Glov- 

erneur Morris . 244 

Textbooks on construction of 

282-283 

Those who signed it, list of .. 215 

Who construes it? .278-280 

Written and unwritten . . .243-244 
Written and unwritten com¬ 
pared by Riddell. 110 

CONSTITUTIONAL CONVEN¬ 
TION .245-246 

Call for assembling . 387 

Delegates of most influence. . 244 

Object and purpose of. 387 

Origin of . 276 

Proceedings of . 245 

Records of .246-247 

CONSTITUTIONAL GOVERN¬ 
MENT, defined by Mr. 

Root .49 et seq. 

Past history of ... 51 

History of slavery.415-427 

Law defined . 221 

Requisites of.49-50 

CONSTRUCTION by Congress 

276-77 

Of the Constitution, rules of 

269-275 

Acquiescence in . 275 

Broad and strict.280-281 

Congressional . 276 

Intent to be sought. 278 

Keys to . 276 

Legislative .277-278 

Madison’s rules .103-104 

Progressive .281-282 

Textbooks on .282-283 

Who construes it? ...278-280 

CONSTRUCTIONISTS, who are 278 
CONTINENTAL Congress and 
Articles of Confederation 

20, 21 

Inception of Union . 21 




















































INDEX 


553 


Page 

CONTROVERSIES between a 


State and citizens of 

other States .534-535 

Between the States . 534 

Between States, powers of 

U. S. Government in ... 164 


CONVENTION, Constitutional 

245-246 

Constitutional, proceedings of 245 
Constitutional, records of 246-247 
That framed the Constitution; 

men who composed it .. 254 
COUNSEL for defendants guar¬ 
anteed . 216 

COURTS, power of State to reg¬ 
ulate suits in .535-536 

State and Federal. 534 

CREATION of Ancient Govern¬ 
ments .154-155 

CREED of U. S., political faiths 

by Jefferson . 310 

CRIMINAL laws of England, 

cruelty of.152, 356 

Of England in 1816 compared 
with those of United 

States .77-78 

CRITTENDEN’S amendment 
would have prevented war 

or secession . 398 

CRUEL and unusual punishment 

prohibited . 217 

CRUELTY of criminal laws of 

.England . 356 

CUSTOM and usage, effect on 

Constitution . 228 

CZARENIAN Government .... 118 

Defined by Black. 49 

DANGERS of Plutocracy . 123 

DANTE’S Lamp carried by 

America . 130 

DAVIS, Jefferson, description of 

Articles of Confederation 35 
Of firing on Fort Sumter.... 403 
Of parties in United States 

344 et seq. 

Detailed account of formation 

of United States..386 et seq. 
Sent commission relative to 


Fort Sumter . 403 

Speech, retiring from United 

States Senate . 390 

Views of the character of the 
Federal Government 

251 et seq. 

Views on dissolution. 287 

On nullification and secession 364 


Page 

DAVIS on political parties. .344-347 

On secession . 379 

DEATH of Adams and Jefferson 316 
DEBTS, adjustment of when 
one State is divided into 

two .536-537 

DECLARATION of Independ¬ 
ence (copy of) .22-26 

Jefferson’s statement of its 

objects and purposes ... 26 

Jefferson’s two provisions 
against slavery stricken 
by Northern delegates 

413 (note) 

List of those who signed ... 25 

Magna Charta of American 

freedom . 26 

Written by inspired pen of 

Jefferson . 26 

DECLARATIONS or bills of 

rights .291-297 

DEEP setting of human rights 226 
DEFECTS and vices of Confed¬ 
eration .36-37 

Of original Constitution 240, 243 
DEFINITION of Constitution, 

220-221 

Of Constitutional law . 221 

Of Government . 46 

Of Sovereignty. 57 

Of State and States .506-507 

DELEGATED powers provided 

for . 217 

DELEGATES of most influence 
in Constitutional Conven¬ 
tion . 244 

DEMAGOGY, defined by Mr. 

Bouviere . 48 

In England and America .... 128 
DEMOCRACIES described by 

Montesquieu . 109 

Equalities under Government 

of .133-134 

Garner’s description of . 131 

Madison, Leckey, Mill and 

Tucker’s description of.. 132 
Pure and representative.. 131-133 

Real faults, of .126-127 

Supposed faults of .127-128 

DEMOCRACY and autocracy 

compared .134-135 

Equality of the people ...130-131 
Or Republic, U. S. Govern¬ 
ment is not . 161 

Defined by Justice Miller .. 46 










































554 


INDEX 


Page 

DEMOCRACY, pure, impossible 

100-101 

Social . 351 

The strength of America .. 128-130 
DEMOCRATIC and Republican 
parties of today compared 
to Tories and Liberals by 

Bryce .342 et seq. 

DEPARTMENT of the Interior 188 
DEPARTMENTS of Govern¬ 
ment, authority of. 187 

Balance of power between... 188 

Independence of. 187 

Powers and duties of . 188 

Three .186-187 

DEPENDENCY of state and 
Federal Governments on 

each other .199-200 

DESPOTIC Governments ...114-116 
DESPOTISM, defined by Mr. 

Bouviere . 48 

How avoided . 100 

DESTRUCTION of the union, 

causes tending to .176-177 

DEVELOPMENT and evolu- 

of Constitution .228-229 

DEVICES, the Constitution not 

an outgrowth of .224-226 

DIFFERENCE between a Fed¬ 
eral Government and Con¬ 
federacy .110-111 

Between Confederation and 

Union . 38 

The Nation and the State 172-174 
British and American Consti¬ 
tutions .264-267 

Constitution and statutes ... 222 
DIFFICULTIES of Forming 

Governments .46-47 

DILLON on bill of rights. 294 

On local self-government . . . 136 
DISBELIEVERS in popular 

Government . 86 

DISSOLUTION of Government, 

power and right of . 389 

Power to declare . 287 

DISTINGUISHING American 

Government from others 71-74 
Between nullification and se¬ 
cession .364-371 

Features of American Govern¬ 
ment .146-149 

DISTRIBUTION and division 
of Governmental powers 

177-182 


Page 

DISTRIBUTION of powers be¬ 
tween United States and 
State Governments ...182-185 
O'f powers of Government ... 72 

Taft’s idea as to . 198 

DISTRUST in original Constitu¬ 
tion . 287 

DIVINE RIGHT OF KINGS dis¬ 
carded .71-74 

DIVISION and distribution of 
Governmental powers 

78-85; 177-182 

Of Governmental powers, ne¬ 
cessity of .185-186 

Of one State into two and ad¬ 
justment of debts_536-537 

Necessity of . 104 

DOCTRINE of secession, origin 

of .372-76 

The Monroe .311-321 

DOUGLAS’ party . 346 

DOUGLASS of Illinois, his posi¬ 
tion as to Port Sumter . . 408 
DRED SCOTT DECISION and 

secession . 397 

Declared Missouri compromise 

unconstitutional*. 416 

Effect of. 402 

Lincoln’s view of. 397 

DUAL form of United States 

Government .88-89, 149 

DUE process of law guaranteed 

by Constitution . 216 

Defined .2, 3 

DUTIES and powers of depart¬ 
ments of Government ... 188 
ELDON’S CHANCERY, cruelty 

of . 152 

ELECTION of president and 
vice-president, how reg¬ 
ulated .217 et seq. 

Of senators and representa¬ 
tives . 208 

Military, under reconstruction 

acts . 500 et seq. 

ELECTORS for president, con¬ 
stitutional provisions as 

to .;. 211 

ELEVENTH amendment, con¬ 
struction of . 538 

EMANCIPATION, Madison’s 

views as to.432-433 

EMBARGO acts .83, 335-337 














































INDEX 


555 


Page 

EMINENT men, opinion and 
eulogies of as to Consti¬ 
tution and those who pro¬ 
posed it .229-233 

ENCROACHMENTS on Consti¬ 
tution warned against .. 333 
ENEMIES and friends of the 

Constitution .253-254 

ENGLAND, acknowledged in-.... 
dependence of States ... 386 
And America, demagoguery in 128 
Criminal laws, cruelty of. 152, 356 
In reality has no Constitution 265 


ENGLISH and American Gov¬ 
ernments compared ... .58-62 
Constitution described by 

Bryce. 75 

Government, one advantage 

over American . 66 

Parliament and Congress com¬ 
pared . 62 

Precedents . 226 

Sanction of slavery.427-428 


System, adopted by France, 
Belgium, Holland, Italy, 
Germany, Hungary, etc.. . 72 

ENUMERATED powers of Gov¬ 


ernment .162-163 

Bights, does not deny others 

not enumerated.. 217 


EQUALITIES under Govern¬ 
ment of democracies .. 133-134 
Of all principle of Government 93 
Of the people in democracy 

130-131 

EQUAL protection of the law 

guaranteed . 218 

ESSENTIAL principles of our 

Government (Jefferson) .. 310 
ESTABLISHMENT of Ancient 

Governments .154-155 

EUROPE’S arrogance as to 
United States Govern¬ 
ment .87-88 

What America has taught Eu¬ 
rope . 87-88 

Action as to slavery. 428 

Affairs, non-interference our 

policy . 312 

Government descends, Amer¬ 
ican ascends . 76 

Quarrels avoided by America 318 
EVACUATION of Fort Sumter 

405-410 

EVERETT’S views on secession 381 


Page 

EVILS of unlimited power in 

Government . 90 

EVOLUTION and development 

of the Constitution ... 228-229 
EXCERPTS from address of 
General Assembly on Vir¬ 
ginia resolution of 1798 

333-335 

From report on Virginia res¬ 
olutions .325-332 

EXCESSIVE fines prohibited .. 217 
EXCLUSIVE and concurrent 

Governmental powers . . . 167 
Powers of United States Gov¬ 
ernment . t .167-168 

EXECUTION of powers of U. S. 

Government, mode of ... 168 
EXECUTIVE officers of the 

State . 510 

Power in England and Amer¬ 
ica compared . 74 

Of president enumerated in 

the Constitution . 211 

EX POST FACTO laws prohib¬ 
ited . 210 

EXTENT and supremacy of 
powers of United States 

Government .170-171 

EXTERNAL powers of United 
States: internal of States 

518 

EXTRADITION provided by 

Constitution . 213 

EXTREMES in Government to 

be avoided .Preface III 

FAREWELL address of George 

Washington .203, 298-308 

FARMERS alliance party .... 347 
FARRAND’S history of Consti¬ 
tutional convention. 246 

FATHER of the Constitution 

(Madison) . 245 

FAULTS of American Govern¬ 
ment by Bryce . 126 

Of democracies, real .126-127 

Of democracies, supposed .127-128 

FEDERAL and State courts .. 534 
Governments compared ... 510-512. 
Governments dependent each 

on the other .199-200 

Laws, conflict between ..512-513: 
Powers in United States, con¬ 
flicts between .164-165 

Constitution borrowed from 

States . 97 

Constitution, nature and char¬ 
acter of . 264 



































556 


INDEX 


Page 

FEDERAL Government, advan¬ 
tages of.89-90 

Government and Confederacy 

contrasted .110-111 

Government, artificial crea¬ 
ture .172, 529 

Government, powers of . 165 

Government, states not antag¬ 
onistic to . 512 

Government, tendencies of . . 110 
Government, United States is 155 
National, or League, which is 

U. S.? .158-159 

National or Republic, which 

is U. S. .Government? 159-161 
Or National, which is United 

States? .155-158 

FEDERALIST and Anti-Fed¬ 
eralist parties, differences 

between . 340 

Papers, authors, and Jeffer¬ 
son’s estimate of them 

240, 270 

Primer and textbook of Con¬ 
stitution (Jefferson) .... 270 
FIFTEENTH amendment, right 

to vote . 219 

FINES shall not be excessive. . 217 

FIRST inaugural address of 

Thomas Jefferson _308-311 

Ten amendments, object and 
purpose of 

Introductory IX and X 
FOREIGN corporations, status 

of . 535 

Nations, our relations to and 

with .203-205 

Relations to nations, how to 
treat, and treat with them 

(Washington) . 305 

FOREIGNERS, effect on Gov¬ 
ernment . 129 (note) 

FORM and nature of the Gov¬ 
ernment of United States 

91-105 

FORMATION $f Governments, 

difficulties of .46-47 

FORM OF GOVERNMENT, 

American .149-150 

Attempt to change .105-107 

Of America is Republican 145-146 

Dual.88-89, 149 

FORT SUMTER, evacuation of 

405-410 

Fired upon . 375 

Occupation of.402-405 

Official correspondence as to 409 


Page 

FOSTER on nullification and se¬ 
cession . 366 

FOURTEENTH amendment ... 218 

FOX and Burke compared. 349 

FRANKLIN’S last words in 

Constitutional convention 229 
FREEDOM of speech guaran¬ 
teed . 216 

FREE soil party .344, 347 

FRENCH Government .119-120 

FRIENDS and enemies of the 

Constitution .253-254 

Of the Union, real . 203 

FUGITIVE from State, regula¬ 
tion of . 213 

FULL faith and credit clause 

of Constitution . 213 

FUNCTIONS and power of 

States . 527-530 

FUNDAMENTAL right of se¬ 
cession .395-396 

GENEALOGY of Constitution 

222 et seq. 

GENERAL and limited powers 
of United States Govern¬ 
ment . 171 

Assembly, address of on Vir¬ 
ginia resolutions of 1798 

333-335 

Government, relation of 

States to .513-517 

GEOGRAPHICAL divisions of 
parties to be avoided 

(Washington) . 300 

Parties and politics, dangers 

of . 176 

Will destroy the Union, Wash¬ 
ington . 205 

GEORGE, Henry, school of poli¬ 
tics . 357 

Washington’s farewell ad¬ 
dress .298-308 

GEORGIA defied Supreme Court 

of United States . 195 

GERMAN Government .121-122 

Social democracy, its tenets.. 354 
GLADSTONE’S encomium of 

the Constitution . 233 

GOVERNMENT, absolute, by 

Mr. Calhoun . 53 

American, as a teacher .... 87-88 
American, compacts in ... 107-108 
American distinguished from 
other Governments 

71-74; 146-149 
American, form of .149-150 











































INDEX 


557 


Page 

GOVERNMENT, American, Re¬ 
publican in form.145-146 

American, trophies and tri¬ 
umphs of.143-145 

And organization of State 

Legislature . 508 

Attempt to change form of 

105-107 


Authority of departments of. 187 

By bureaucracy.117-118 

By classes, in Europe and 

America . 76 

. By parties .....^.60 et seq., 74-78 

By the people .85-87 

Classification of powers of in 

United States . 165 

Colonial, as described* by 

Black and Bryce.21, 22 

Constitutional requisites of 49-50 
Defined by Justice Miller ... 46 

Departments of, balance of 

power between . 188 

Departments of, powers and 

duties of. 188 

Division of powers of .78-85 

Dual form of United States 88-89 


During war and peace con¬ 


trasted .64 et seq. 

Effect of foreigners on. 129 (note) 

Equality of people in... .130-131 

Federal, advantages of .89-90 

French .119-120 

General, relation of states to 513 

German .121-122 

History of .51-52 

How ifr came to man. 50 

Independence of departments 

of . 187 

Institutional .139-143 

Kinds of . 47-49 

Local self .135-139 


Must first control the govern¬ 


ed and then itself. 178 

Necessary to existence of so¬ 
ciety .50-52 

Object and purpose of .52-53 

Of aristocracies.116-117 

Of democracies, equalities un¬ 
der .133-134 

Of monarchies, nature of 112-114 
Of United States, actions 

against .201-202 

A Federal Government . 155 

Dual form of. 149 

Dual, meaning of. 89 

Exclusive powers of.167-168 


Page 

GOVERNMENT, Extent and 
supremacy of powers of 

170-171 

From and nature of.91-105 

How ordained .153-154 

Is it Federal, national or a 

league .158-159 

Is it Federal, national or re¬ 
public? .159-161 

Is it Federal or national? 155-158 
Mode of executing powers of 168 
Not a compact or league . .108-109 
Not a republic nor democracy 161 
One of limited powers... .162-164 

Powers conferred on .161-162 

Sovereign powers of .... 150-153 

Origin of ... 50 

Ought to rest upon consent of 

people . 37 

Presidential and cabinet, 

form of .63-71 

Republican form of, guaran¬ 
teed .125-126 

Russian . 118 

Sovereign power of .54-56 

State, nature of. 506 

The people, the source of ... 53-54 
Three departments of describ¬ 
ed .;.186-187 

Tyranny in .122-123 

Unlimited power in, evils of 90 

GOVERNMENTAL POWERS, 
divisions and distribution 

of .177-182 

Exclusive and concurrent ... 167 

Granted and reserved . 167 

Nature of . 166 

Reserved . 166 

Separation of . 165 

GOVERNMENTS, American 

and English compared .. 58-62 
Ancient—by whom establish¬ 
ed or created.154-155 

Controlled by natural laws 

(note) . 113 

Dependency of State and 

Federal .199-200 

Described and defined by 

Montesquieu . 49 

Despotic .114-116 

Different kinds of enumerat¬ 
ed and defined by Mr. 

Bouviere .47 et seq. 

Difficulties of forming.46-47 

How and when they perish .. 124 

In Confederacies . 109 

Republican .123-125 





























































558 


INDEX 


Page 

GOVERNMENTS, spirit of . .. 90-91 
Tendencies of consolidated 

and Federal. 110 

GOVERNORS of States, powers 

and duties of. 509 

GRAND JURIES, required by 

Constitution . 216 

GRANT and reservation of Gov¬ 
ernmental powers . 167 

Of powers, the Constitution as 

such . 221 

GREAT Charter of King John 

(copy of) .5-17 

Ordinance of 1787, literal 

copy of.38 et seq. 

GUARANTEE of republican 

form of Government .125-126 
GUARANTEES of Constitution 87 
HABEAS CORPUS, Jefferson’s 

views as to right of. . . . 239 

Privilege of writ . 210 

HAMILTON and Jefferson, their 
differences as to Govern¬ 
ment .106-107 

Eulogized by Tallyrand ..252-253 

On bills of rights .294-296 

Preferred Jefferson to Burr 

(note) . 242 

His prophecy as to Govern¬ 
ment of United States 87-88 
HAMILTON’S criticism of ar¬ 
ticles of Confederation 

36 et seq. 

Idea to change Government 

105-106 

HAMILTONIAN and Jefferso¬ 
nian schools of states¬ 
men . 250 

HARTFORD Convention. 336 

Object and results of . 83 

HAYMARKET explosion .350 

HAYNE and Webster’s debate 

as to State rights ....519-20 
HENRY Clay’s party, Whig . . 341 
HEREDITARY GOVER N- 

MENT avoided . 180 

In England .68 et seq. 

HIERARCHY, defined by Mr. 

Bouviere . 48 

HIGHWAYS, Federal powers as 

to .169-170 

HISTORICAL facts to support 

right of secession_378-393 

HISTORY has ignored some 

facts .465-467 

Of Constitutional Govern¬ 
ment _*. 51 


Page 

HISTORY of Government of 

U. S.51-52 

Of nullification .362-364 

Of slavery .411-415 

Of slavery, Constitutional slav¬ 
ery .415-427 

Of the Union . 206 

HOLY ALLIANCE . 311 

HOME made sacred by Consti¬ 
tution . 216 

HOMOGENEITY of Govern¬ 
ment . 93 

HONEST belief in secession 376-377 
HOSTILITY and' opposition to 

Constitution .237-238 

HOUSE OF COMMONS and 
American electors com¬ 
pared . 76 

And House of Lords, com¬ 
pared . 63 

HOUSE OF LORDS and Senate 
of United States compar¬ 
ed .63 et seq. 

Bagehot’s description of 

62 et seq. 

HOUSE, lower, originates reve¬ 
nue bills . 209 

HOW and when the Constitu¬ 
tion was made .244-245 

IMMEDIATE causes of seces¬ 
sion .399-402 

IMMUTABILITY of Constitu¬ 
tion . 282 

IMPEACHMENT, punishment 

awarded for. 208 

Senate as court ....... 208 

IMPOSTS, duties regulated . . . 211 
IMPRACTICABILITY of seces¬ 
sion . 372 

IMPROVEMENTS, internal, 
power of U. S. Govern¬ 
ment to engage in ...168-170 
INCOME TAX, Constitutional 

provision as to . 219 

INDEPENDENCE, acknowledg¬ 
ed by England . 386 

Declaration of .22-26 

Of departments of Govern¬ 
ment . 187 

INDESTRUCTIBLE States, an 

indissoluble Union of ... 175 
INDIANS, Congress and courts 

guardians of .458 et seq. 

Wards of nation .457-460 

INDICTMENT must inform de¬ 
fendant of nature and 
cause of accusation .... 216 














































INDEX 


559 


Page 

INDISSOLUBLE union of inde¬ 
structible States . 175 

INELIGIBILITY of senators 
and representatives for 

certain offices . 209 

INSTITUTIONAL self-govern¬ 
ment .139-143 

INSTITUTIONS, old, the Con¬ 
stitution an outgrowth of 

224-226 

INTENT to be sought in con¬ 
struction of Constitution 278 
INTERIOR, department of .... 188 

INTERNAL commerce, reserved 

to States . 172 

Improvements, Federal 

powers as to . 169 

Improvements, Madison ’ s 

views of .271-272 

Improvements, powers of U. 

S. Government to engage 

in .168-170 

Powers of States: external of 

United States . 518 

INTERNATIONAL political 

parties . 351 

INTOXICATING liquors, manu¬ 
facture and sale of, Con¬ 
stitutional provision .... 220 
INAUGURAL address of Jeffer¬ 
son, first .308-311 

INVASION is operation of war 327 
JEFFERSON’S aid as to ratifi¬ 
cation of Constitution 

Introductory IX 
And Adams, last correspond¬ 
ence between them . 441 

And Adams ’ opinion of the 
crowned heads of their 

acquaintance . 69 

And Hamilton’s differences as 

cabinet officers .106-107 

And Story’s schools; their 
theories as to nature of 

Governments . 156 

Axioms as to Government ... 53 

Criticism of Missouri com¬ 
promise .439, 441 et seq. 

Enumerates essential prin¬ 
ciples of Government . . . 310 
His estimate of the Federal¬ 
ist . 240 

Eulogy of Madison. 245 

Eulogy of the Constitution.. 256 
First inaugural address ..308-311 

Ideal Government .256-257 

Idea of history of Govern¬ 
ment . 51 


Page 

JEFFERSON’S idea of rebellion 123 
Never opposed ratification of 

Constitution .231-233 

Objections to the Constitu¬ 
tion .106-107 

His politics, from his own pen 241 
His statement of objects and 
purposes of declaration of 

independence . 26 

• His two provisions against 
slavery in declaration of 
independence stricken by 
northern delegates 413 (note) 
Views of the Constitution 233-236 


Views on local self-govern¬ 
ment . 136 

JEFFERSONIAN democrats .. 347 

JOHN Brown’s raid .437-438 

King, great charter of.5-17 

JOHNSON, ANDREW, conflict 

with Congress . 81 

Proclamation of amnesty and 

pardon, form of . 495 

JUDGES, FEDERAL, compen¬ 
sation of . 212 

Hold office during good be¬ 
havior . 212 

Function of in Government . . 94 

JUDGMENT of one’s peers, 

England and America . . 87 

JUDICIAL branch of Govern¬ 
ment, weakest, reasons 

for . 290 

Powers of the State. 510 

Power, extent of declared in 

Constitution . 213 

Power, how vested . 212 

Power supreme . 151 

JUDICIARY guardian of Con¬ 
stitution . 151 

Represents minorities . 147 

JURY trial guaranteed-216, 217 

KEYS to construction of the 

Constitution . 276 

KINDS of Government enumer¬ 
ated .47-49 

KINGS and rulers of Europe 

described . 69 

Divine right of, discarded. .71-74 
Powers in England described 69 
KING JOHN’S funeral knell.. 2 

John, great charter of .5-17 

Of England, powers of. 68 

KNOW NOTHING PARTY .... 345 
LABOR and capital, conflict be¬ 
tween . 356 









































560 


INDEX 


Page 

LANDLESS POOR, relation to 

Government . 151 

LANGDON’S efforts in obtain¬ 
ing Magna Charta ..1 et seq. 
Reading Magna Charta to 

King John.1 et seq. 

LAWS, alien and sedition ..321-323 
Made by direct vote of people 529 

No one above . 94 

Of the Confederate States, 

status of . 481 

Servant;—politics master ... 378 
Supreme, the Constitution as 221 
LEAGUE, national or Federal, 
which is U. S. Govern¬ 
ment? .158-159 

To be avoided, Washington’s 

advice .203 et seq. 

Wilson’s original views of . . . 320 
United States Government is 

not .108-109 

LEGEND as to dialogue be¬ 
tween Washington and 
Hamilton as to ratifica¬ 
tion of the Constitution 

Introductory IX 
LEGISLATIVE construction of 

the Constitution _277-278 

Powers of the State. 509 

Only limitations upon . 172 

LEGISLATURE of State, or¬ 
ganization and Govern¬ 
ment of . 508 

Power like that of Parliament 530 

Powers of .508-9 

LIBERTY depends on local 

self-government . 135 

Garden bed of . 141 

How and when it perishes ... 124 
O'f conscience and press se¬ 
cured . 324 

Spirit of described by Lieber 180 
LIEBER on Constitutional Gov¬ 
ernment . 139 

LIEBER’S description of local 

self-government . 135 

LIMITATIONS upon powers of 

Governments ....71; 162-163 
Upon powers of States ... 530-532 
LIMITED and general powers 
of United States Govern¬ 
ment . 170 

Powers of United States Gov¬ 
ernment .162-164 

LINCOLN chose to save the 
Union rather than to en¬ 
force all of the Constitu¬ 
tion .383-384 


Page 

LINCOLN, his death, blow to 

South . 82 

Poster says that shot that 
killed Lincoln was more 
injurious than any other 

fired in Civil War . 494 

And Hamlin party . 346 

His inaugural address as to 

slavery . 450 

His inaugural address describ-. 

ed by Foster. 425 

On secession .396-397 

His view of the Scott decision 397 

LOCAL self-government ... 135-139 
LOUISIANA PURCHASE .... 279 
Threats of destruction of 

Union . 373 

LUXURIES destroy republics.. 124 
MACHINERY of Government, 

how established . 92 

MADISON, adviser of Hamilton 

and Jefferson . 286 

His and Jefferson’s corre¬ 
spondence on bill of 

rights . 291 

He and Jefferson criticize 
Missouri compromise and 
declare it unconstitutional 416 
He compares monarchies and 

republics . Ill 

His comparison and contrast 
of State and Federal powers 199 
His encomium, by Jefferson .. 245 

His history of slavery. 418 

His idea as to Objects of Gov¬ 
ernment . 51 

Gn nullification .362 et seq. 

On secession and nullification 370 
His papers purchased by Con¬ 
gress after his death ... 245 
His rules for construing Con¬ 
stitutions .103-104 

The father of the Constitution 245 
His views as to character of 
United States Government 

156, 157, 159 
His views of emancipation 432-433 
MAGNA CHARTA (copy of) ..1-17 
Compared with American 

Constitution. Introductory VI 


Coke’s description of . 2 

Defined by Supreme Court of 

United States . 3 


Literal form and copy of. 5-17, inc. 
No restraint upon Parliament 71 
Object and effect as described 
by Supreme Court of United 


States . 3 et seq. 

When and how obtained .... 1-2 







































INDEX 


561 


Page 

MAJORITIES, cruelty and tyr¬ 
anny of . 174 

Should give law . 54 

MAKERS OF THE CONSTITU-_ 

TION .252-255 

Motives which inspired .. .255-256 
MAKING of the Constitution 237 
MARSHALL, C. J., on right of 
secession and State ’s 

rights . 379 

MARTIAL LAW after War Be¬ 
tween the States. 496 et seq. 
MARTIN, (Luther), his views 
of the Constitutional Con¬ 
vention . 251 

MASS., N. H., N. Y., N. C.’s 

ratification.284 et seq. 

MASSACHUSETTS’ threat of 

secession .373-374 

McCULLOCH v. MARYLAND, 

Madison’s criticism of it 271 
MEANING of “Government of 

United States” . 89 

MEASURE, compromise of 1850 

444-445 

MILITARY and civil Govern¬ 
ment, conflict of after the 

war .496 et seq. 


MILITIA, Congress ’ powers 

over . 210 

State, guaranteed . 216 

MILLER, J., opinion of the Con¬ 
stitution of United States 267 
MINISTERS, duty of president 

to receive. 212 

MINISTRY of England, its re¬ 
lation to Parliament ... 73 

MINORITIES, represented in 

Government . 147 

MISSOURI COMPROMISE 416, 

439-444 

Account of in story on the 

Constitution . 439 


Criticized by Jefferson 

439, 441 et seq. 
Criticized by Madison and 
Jefferson, and declared 

unconstitutional . 416 

Declared unconstitutional by 

Dred Scott decision. 416 

Jefferson and Adams discuss 

it . 441 

MODE of executing powers of 

U. S. Government . 168 

MONARCHIAL party, threat¬ 
ened .241-242 

MONARCHIES, absolute, defin¬ 
ed by Justice Miller ... 46 


Page 

MONARCHIES and republics 

compared . Ill 

And their Governments . . 112-114 
MONEY, power of States to 

borrow . 523 

MONROE DOCTRINE .311-321 

By Jefferson . 315 

By Madison . 316 

By Washington . 319 

MONTESQUIEU, the Aristotle 

of political society . 73 

His views of autocracies 116-117 
Bible of political philosophy 59 
MONTESQUIEU’S description 

of autocracy . 134 

Description of different Gov¬ 
ernments . 109 

Ideas of monarchies ... 112 

Justification of slavery.414 

Oracle on Government . 179 

Principles of Government are 
three, fear, honor and vir¬ 
tue . 90 

MORAL force greater than law 378 
MORRIS, Governeur, perfected 
style and syntax of Con¬ 
stitution . 244 

MOST perfect Union . 202 

MOTHER COUNTRY, relation 

of the colonies to.19, 20 

MOTIVES which inspired the 
makers of the Constitu¬ 
tion .255-256 

NATION and the State, differ¬ 
ence between...172-174 

Indians are wards of.457-460 

The United States, is it a na¬ 
tion? . 205 

The United States is not, but 

a Union .174-175 

NATIONAL banks, Madison’s 

view of . 275 

Federal of league, which is 
U. S. Government? .. 158-159 
Federal or republic, which is 

U. S. Government? ...159-161 

Madison’s definition .155-156 

Or Federal Government, 
which is United States? 

155-158 

NATURAL laws of necessity 
control governments 
(note) . 113 

NATURE AND CHARACTER 

of Federal Constitution 264 

Of the Constitution.256-258 

Of American Government . .91-105 
Governmental power. 166 














































562 


INDEX 


Page 

NATURE AND CHARACTER 

of American Union . 202 

Of U. S. Government, Dual or 

compound . 149 

NAVY, commander-in-chief of 212 
NECESSITY of division of Gov¬ 
ernmental powers .... 185-186 

Of Government.50-51 

Of political parties .347-348 

NEGROES, discrimination 
against as to right to 

vote prohibited . 219 

Status defined by Supreme 

Court ..453 et seq. 

Natural differences between 
the races can not be dis¬ 
regarded by municipal 

law .455 et seq. 

Separate schools, separate 
carriages and coaches au¬ 
thorized by law. 455 

Status of .454-457 

NEUTRALITY, as to foreign 

nations (Washington) . . 307 
NEW DEVICES, the Constitu¬ 
tion not an outgrowth of 

224-226 

NEW ENGLAND first advocat¬ 
ed secession .372-373 

NEWSPAPER comment on se¬ 
cession in 1861 ...390 et seq. 
NEW STATES, how admitted 

into the Union ...213 et seq.' 
NOBILITY, title of not allow¬ 
ed .'. 211 

NORTHERN delegates strike 
Jefferson’s two provisions 
against slavery in Dec¬ 
laration of Independence 

(note) .i. 413 

States fought to preserve the 
Union, if it destroyed the 

Constitution . 466 

NORTHWEST territory, ordi¬ 
nance for Government of 

(copy of) .38-47 

NOTES on Confederate Consti¬ 
tution .479-480 

NULLIFICATION, act of .362 

And secession distinguished 

364-371 

By Georgia.164-165 

By New England. 164 

By South Carolina .164-165 

History of .362-364 

In Boston (Webster) . 377 

NUMERICAL majority, cruelty 
of . 


Page 

OATH of allegiance taken by 
Southern people after the 

war (form of) .495, 496 

Of office for president . 212 

To support Constitution .... 214 

OBJECT AND PURPOSE of 

Government .52-53 

Of this book . Preface IV 

Of the Constitution.226-228 

OBJECTION to original Consti¬ 
tution . . Introductory IX & X 
To original Constitution, sum¬ 
marized by author ...290-291 
To ratification of Constitution 

288-291 

To the Constitution .238-243 

OCCUPATION of Fort Sumter 

402-405 

OFFICERS of the State, execu¬ 
tive . 510 

OHIO RIVER, ordinance for 
Government of territory 

northwest of .38-47 

OLDEST and youngest Govern¬ 
ment is (U. S.) . 148 

OLD INSTITUTIONS, the Con¬ 
stitution an outgrowth of 

224-226 

OLIGARCHY, defined by Mr. 

Bouviere . 48 

OPINION of eminent men as to 
Constitution and those 

who proposed it.229-233 

Public, sovereignty of ...337-338 
OPPOSITION and hostility to 

the Constitution .237-238 

To political parties . 344 

To Constitution . 230 

To ratification . 287 

ORDINANCE of 1787 .38-47 

Described by Chief Justice 

White . 44 

Described by Supreme Court 

and Judge Black . 45 

Drafted by Jefferson, prohib¬ 
ited slavery . 414 

Drafted originally by Thomas 
Jefferson, but revised by 

others . 44 

ORDINATION of American 

Government . 153 

Of ancient Governments .... 154 
Of United States Government 

153-154 

Or adoption of Constitution 

247-252 


174 









































INDEX 


563 


Page 

ORGANIZATION and Govern¬ 
ment of the State legisla¬ 
ture . 508 

ORIGINAL draft of Constitu¬ 
tion preserved in archives 230 

ORIGIN of Government . 50 

Of the Constitution .222-224 

Of the doctrine of secession 

372-376 

OUR RELATIONS to and with 

foreign nations . 203-205 

PAPER CONSTITUTIONS, at 

first were subjects of ridi¬ 
cule . 244 

PARDON and amnesty issued 
by Johnson to all South¬ 
erners . 495 

PARLIAMENT and Congress 

compared .62-63, 265 

PARTIES and factions in Gov¬ 
ernment, warned against 

(Washington) .302 

In United States described by 

Davis.344 et seq. 

Necessity of political. 344 

Opposition to political. 344 

Political a necessity.347-348 

Political, Davis on .344-347 

Political in the United States 

338-344 

To Constitution, States as 518-519 

To suit, States as .537 

PARTY GOVERNMENT 

60 et seq.; 74-78 

Jefferson’s views . 99 

PARTY, the Free Soil. 344 

To actions, United States as 202 
PATRONAGE, danger of .... 177 
PEACE, with foreign nations, 
how obtained (Washing¬ 
ton) . 305 

PEMBROKE’S efforts in obtain¬ 
ing Magna Charta .. 1 et seq. 
PEONAGE as a form of slavery 

445-447 

PEOPLE, equality of in democ¬ 
racy .130-131 

May protect themselves 

against themselves .85-87 

Of Virginia, address to by 
General Assembly on res¬ 
olutions of 1798 .....333-335 

Real sovereigns . 71 

Sovereignty of . 57 

The source of Government .. 53-54 
PERFECT UNION, to form a 

more . 202 


Page 

PERPETUAL Union and ar¬ 
ticles of Confederation 

27-38; 175 

PERSON, houses, papers of cit¬ 
izen made secure . 216 

PICKERING, on secession, right 

of . 372 

PIRACY provided against .... 335 
PLATO prohibited gifts or re¬ 
wards by Government to 

subjects . 116 

PLOT to change form of Gov¬ 
ernment .105-106 

PLUTOCRACY, dangers of . .. 123 
POET’S description of King 

John’s death. 2 

POLAND’S Government in 1800 146 
POLICE powers of States 532-534 
POLITICAL chart for the Amer¬ 
ican ship of State ...297-298 

Economist . 352 

Parties a necessity .347-348 

Parties can not divide geo¬ 
graphically . 205 

Parties, Davis on .344-347 

Parties in America as describ¬ 
ed by Bryce.340 et seq. 

Parties, international . 351 

Parties in the United States 

338-344 

Parties, opposition. 344 

Questions, not for courts . . . 125 
Relations with foreign nations 

(Washington) . 306 

POLITICS, greographical, divi¬ 
sion . 176 

In United States, criticized 

by Bryce .173 et seq. 

The master, law, the servant 378 

Of Clay and Webster_348-349 

“Tammany Hall” in. 349 

POLYARCHY, defined by Mr. 

Bouviere . 48 

POPULIST party .... 347 

POPULAR sovereignty . 346 

POVERTY, advantages of .... 131 

Destroys monarchies. 124 

POWER, abuse of prevented .. 91 

And duties of departments of 

Government . 188 

Of States .527-530 

Balance of between depart-... . 

ments of Government .. 88 

Balance of, how preserved.. . 339 
Conferred on U. S. Govern¬ 
ment .161-162 

Defined by Hamilton. 166 
















































564 


INDEX 


Page 

POWER denied and prohibited 

to Governments . 163 

Distribution of between Uni¬ 
ted States and State Gov¬ 
ernments .182-185 

Division and distribution of 78-79 
Exclusive of United States 

Government .167-168 

Not delegated reserved to the 

states or people . 217 

Of European government, with¬ 
held in America. 327 

Of Federal Government .... 165 
Of Government, classification 

of in United States .... 165 

Dangers of . 52 

Division and Distribution of 

78-85; 177-182 
Necessity of division of . .. .185-6 

Reserved . .. 166 

Sovereign .54-56 

Of governor of State . 509 

Of the State .523-524 

Duty as to usurpation of .. 508 
Internal: of United States 

external . 518 

Judicial . 510 

Legislative . 509 

Limitations upon .530-532 

Reserved .524-527 

To regulate suits in own 

coiirts .535-536 

Of United States Government 
in controversies between 

States . 164 

Limited .162-164 

Limited and general. 171 

Mode of execution . 168 

To engage in internal improve¬ 
ments .168-170 

Police, of State .532-534 

Sovereign, of U. S. Govern¬ 
ment .56, 150-153 

Sovereign, where does it re¬ 
side .56-57 

The Constitution as a grant of 221 

evils of. 90 

Unlimited in Government, 
PRECEDENTS, guides for con¬ 
struction .276-277 

PRESENTMENTS or indict¬ 
ments, when necessary .. 216 
PRESERVATION of union .... 205 
PRESIDENT approves or vetoes 

bills . 209 

Commander-in-chief of army 

and navy . 212 

Constitutional provision as to 

election . 217 


Page 

PRESIDENT, differences with 

Supreme court . 278 

Johnson’s conflict with Con¬ 
gress . 81 

Must inform Congress of state 

of the Union . 212 

Oath of office of. 212 

Compared with English kings 74 
Powers and duties as to treat¬ 
ies . 212 

Powers and duties of enumer¬ 
ated .211, 212 

Powers of during war and 

peace.•... .211 et seq. 

Should he succeed himself?— 

Jefferson’s views . 241 

PRESIDENTIAL and cabinet 

Government .63-71 

Election in 1860, as cause of 

war and secession . 399 

Government described by 

Bagehot .63 et seq. 

PRETEXTS for power afforded 

by war . 335 

PRINCIPLES of Government, 

essential (Jefferson) .... 310 
PRIVILEGES and immunities 

of citizens.213, 218 

PROCEEDINGS of the conven¬ 
tion which made the Con¬ 
stitution . 245 

PROGRESSIVE constructions 

of Constitution .281-282 

PROHIBITION amendment to 

Constitution .66-67; 220 

Party . 347 

PROPERTY, private right to 
described by Judge 

Brown . 356 

Reason for its safety. 129 

Schemes for distribution of.. 357 
PROPHECIES as to secession 

394-395 

PROPONENTS of Constitution, 
opinion of eminent men 

as to.229-233 

PROTECTION of the people 

from themselves .85-87 

PROTOTYPES of the Constitu¬ 
tion . 226 

PROVISO, Wilmot . 427 

PUBLIC OPINION, effect of.. 275 
Should be enlightened (Wash¬ 
ington) . 304 

Sovereignty of .337-338 

What it has made presidents 

do .337-8 

PUNISHMENT shall not be 

cruel or unusual. 217 

























































INDEX 


565 


Page 

PURE and representative de¬ 
mocracies .131-133 

Defined by Justice Miller ... 46 

PURPOSE AND OBJECT of 

Government .52-53 

Of the Constitution.226-228 

Of the Union . 175 

QUESTIONS, political, not for 

paiitIq "1 

QUINCY, JO SI AH, on right of 

secession . 373 

Threat to secede in 1811 .... 386 
RACE, color,*or previous condi¬ 
tion, as to right to vote 219 
Differences recognized by Su¬ 
preme Court . 455 

RACIAL and physical differ¬ 
ences are natural laws, 
not municipal 456 et seq. 

RAID of John Brown .437-438 

RATIFICATION of the Consti¬ 
tution .283-288 

Conditionally by N. Y.285 

Difficulties encountered ..... 237 

Objections to .288-291 

Opposition to . 231 

REAL faults of democracies 126-127 

Friends of the Union . 203 

REBELLION, and anarchy ... 123 

In Rhode Island . 174 

RECONSTRUCTION ACTS and 

reconstruction .486-505 

Attempted amalgamation and 

fusion of races . 491 

Attempt to authorize Con¬ 
gress to establish State 

Government . 490 

Attempt to enjoin enforce¬ 
ment of by United States 493 
Authorized arrest without 

warrant . 488 

Copy of .481-486 

Declared unconstitutional, un¬ 
endurable and tyrannical 
by President Johnson ... 487 
Denied right of bail to mil¬ 
lions of people . 489 

Denied the legality of the 
governments of the South¬ 
ern States . 489 

Deplorable condition of the 

South under . 505 

Deprived the people of life, 
liberty and property with¬ 
out any process of law. . 488 
Disregarded in toto repub¬ 
lican form of Government 492 
Horrors of .486 et seq. 


Page 

RECONSTRUCTION ACTS, if 

valid would have repealed 
the Constitution of the 
United States ....491 et seq. 
Military orders to remove ex¬ 
ecutive and judicial offi¬ 
cers of the State .504 

Military troops interrupted 

legislative bodies . 504 

New Constitution for States, 

how adopted .. 503 

No justification in law or fact 

for them (Foster) . 493 

Object and effect of .. . .81 et seq. 

Provided military government 
over 12,000,000 people in 

time of peace . 489 

RECONSTRUCTION and recon¬ 
struction acts .486-505 

Convention under military au¬ 
thority .499 et seq. 

How elections were held un¬ 
der .500 et seq. 

Military elections ....500 et seq. 
RECORDS of the Constitutional 

Convention .246-7 

REICHSTAG, a law-making 

body . 121 

RELATION of States to each 
other and to the United 

States . 510 

Of States to one another . .517-518 
Of States to the general Gov¬ 
ernment .513-517 

Of United States Government 
to the several States .... 172 
Of the States and United 

States . 511 

Of the colonies to each other 
and their mother country 

19, 20 

To and with foreign nations 

•203-205 

RELIGION not established by 

Congress . 216 

Support to Government 

(Washington) . 304 

And churches, voluntary sup¬ 
port of . 129 

RELIGIOUS freedom . 145 

Test to office prohibited .... 214 
REPORT on Virginia resolu¬ 
tions, excerpts from .. 325-332 
REPRESENTATION in Con¬ 
gress, regulation as to... 218 
REPRESENTATIVE democra¬ 
cies .131-133 

Government defined by Dr. 

Hill .86-87 > 












































566 


INDEX 


Page 


REPRESENTATIVES in Con¬ 
gress, qualifications of... 218 
REPUBLICAN and Democratic 
parties of today compar¬ 
ed to Tories and Liberals 

by Bryce.342 et seq. 

Convention, the first sectional 345 
Form of American Govern¬ 
ment .145-146 

Form of Government guaran¬ 
teed .125-126 

Governments .123-125 

REPUBLIC, national or Fed¬ 
eral, which is U. S. Gov¬ 
ernment? .159-161 

Or democracy, U. S. Govern¬ 
ment is not. 161 

And monarchies compared .. Ill 
REQUISITES of Government, 

Constitutional .49-50 

RESERVATION of Govern¬ 
mental powers.166-167 

RESERVED powers of States 

524-527 

RESIDENCE of sovereign 

power .56-57 

RESOLUTIONS of Virginia, ex¬ 
cerpts from report on 325-332 

Virginia, of 1798 .323-324 

Virginia of 1799 .324-325 

REVENUE bills must originate 

in the House . 209 


REVOLUTION, causes of 

Introductory VI 
In Government, English and 


American . 66 

Justified . 384 

Of Rhode Island.360-362 . 

Right of .261, 360 


RHODE ISLAND’S objection to 


Constitution . 290 

Rebellion . 174 

Revolution ..360-362 

Status before her Constitution 125 

RIGHT OF REVOLUTION ... 360 
RIGHT OF SECESSION — au¬ 
thorities for.378-393 

Fundamental ...395-396 

RIGHTS and sovereignty of the 

States . 57 

Bills or declarations of .. 291-297 
Of citizens which Constitution 

guarantees . 217 

Of States .519-523 

Of States as to slavery .. .433-436 

Reserved to people .166-167 

RIVER OHIO, territory north¬ 
west of, ordinance for 
Government of .38-47 


Page 

ROME AND CARTHAGE, Mon¬ 
tesquieu 's description and 

comparison . 125 

ROOT’S definition of American 

Government . 49 

ROSE, U. M., on socialism .... 357 

RUNNYMEDE, where Magna 

Charta was signed .. 1 et seq. 

RUSSIAN Government . 118 

SANCTION of slavery by Eng¬ 
lish .427-28 


SEARCHES and seizures, unrea¬ 
sonable, prohibited .216 

SECESSION a fundamental 

right .395-396 

And nullification distinguish¬ 
ed .364-371 

And the Dred Scott decision. 397 

An honest belief.376-377 

At the bar of the Supreme 

Court .397-398 

Could have been averted, how 

398-399 


Did not contemplate war . . . 375 
How it could have been avoid¬ 
ed . 385 

How slavery led to . 436 

Immediate cause of.399-402 

Impracticability of . 372 

Lincoln on .396-397 

List of those who claimed the 

right for the States .... 372 
Newspaper comments on in 

1861 .. . .390 et seq. 

Not of Southern origin . 374 

Origin of the doctrine ...372-376 

Prophecies as to .394-395 

Right of—authorities for 378-393 
Right of not disputed for half 

a century . 383 

Slavery not cause of _393-394 

Threatened in 1812 . 

SECTIONAL divisions to be 

avoided (Washington) .. 300 

Parties, inception of . 345 

SECTIONALISM destroys the 

Union.175, 205 

SEDITION and alien laws ..321-323 
SEIZURES and searches reg¬ 
ulated . 216 

SELF-CONTROL of Govern- 

incuts 178 

SELF-GOVERNMENT, institu¬ 
tional .139-143 

Local .135-139 

SENATE and House of Lords 

compared .63 et seq. 

How composed . 207 























































INDEX 


567 


Page 


SENATE, its powers and duties 

as to treaties . 212 

Tries impeachments. 208 

SENATORS AND REPRESEN¬ 
TATIVES, ineligible for 

certain offices . 209 

SENATORS, election by people 

authorized . 219 

How and when chosen. 208 

Qualifications and obligations 

of . 218 

Vacancies, how filled . 219 

SEPARATION of Governmental 

powers . 165 

SERVITUDE, African, existed 
in all States when Con¬ 
stitution adopted . 413 

Involuntary, prohibited . 218 

SEWARD’S Conference with 
Confederate Commission¬ 
ers as to Fort Sumter . . . 406 
SHIP OF STATE, American, 

political chart for ...297-298 
SIGNERS of Constitution, list 

of . 215 

“SLAVE” or “slavery” do 
not occur in original Con¬ 
stitution. Madison would 

not allow it . 412 

SLAVE, white, traffic in . . .447-449 
SLAVES, emancipation of .... 432 

SLAVERY . 444 

Abolition of .449-454 

Acts of Congress protecting. . 421 

As cause of war. 423 

Authorized by Constitution 

(Bryce) . 378 

Blaine ’s opinion as to . 426 

Calhoun’s views as to .436 


Constitutional history of 415-427 
Constitutional provision pro¬ 
tecting it was adopted by 

unanimous consent . 416 

Controversy between England 


and America as to. 430 

European action as to . 428 

Existed when United States 

were formed . 412 

History of .411-415 

History of, by Calhoun . 415 

History of, by Madison. 418 

How it led to secession ..436-437 

Jefferson Davis’ resolution in 
the United States Senate 

as to in 1860 . 438 

Justified by Supreme Court of 

United States . 415 

Lincoln’s inaugural address as 

to . 450 


Page 

SLAVERY, Montesquieu’s justi¬ 
fication of . 414 

Necessity for (Montesquieu) 414 
North oppressed South as to 

(Webster) . 413 

Not cause of secession ..393-394 
Not creature or product of 

South . 401 

Once existent in all States .. 401 
Opponents declared by Clay. . 417 

Origin of . 411 

Peonage a form of.445-447 

Prohibited . 218 

Regulation of . 210 

Sanctioned by England ....427-8 

State’s rights as to.433-436 

Webster’s opinion as to in 

1833 426 

Webster’s views as to .433 et seq. 

SOCIAL DEMOCRACY . 351 

SOCIALISM .351-358 

By Judge U. M. Rose. 357 

Described by Judge Brown . . 357 

Well organized . 350 

SOCIETY, its relation to Gov¬ 
ernment, by Mr. Calhoun 52 
SOLDIERS, not quartered in 
house, except as provided 

by law . 216 

SOME FACTS which history 

has ignored .465-467 

SOURCE of Government, the 

people .53-54 

SOUTHERNERS not rebels . . 377 

Not traitors . 377 

SOUTHERN STATES fought to 
preserve the Constitution, 
if it destroyed the Union 466 

Never out of Union .397-398 

Not propagandists of slavery 401 
Statutes of all held void .... 481 
SOVEREIGN POWER, defined 

by Webster and Davis 54-55 

Of Governments .54-56 

Of the United States 56; 150-153 

Where does it reside.56-57 

SOVEREIGNTY and rights of 

the States. 57 

Defined . 57 

Of public opinion.337-338 

Of States and the United 

States .54 et seq. 

Of the people . 57 

Of the States . 56 

SPEAKER of House of Repre¬ 
sentatives, how chosen .. 207 

SPIRIT of Governments _.90-91 

SPOILS SYSTEM, criticized by 

Brvce . 126 
























































568 


INDEX 


Page 

SQUATTER Sovereignty . 345 

STATE, action against by Uni¬ 
ted States . 543 

And Federal Constitutions 

compared . 97 

And Federal courts. 534 

And Federal Governments 

compared .510-512 

And Federal Governments de¬ 
pendent on each other 199-200 
And Federal Governments, re¬ 
lation of each to the other 96 
And Federal laws, conflict be¬ 
tween .512-513 

And Federal powers, conflicts 

between .164-165 

And States defined.506-507 

And the nation, difference be¬ 
tween .172-174 

And Union, functions of .. .136 

And United States Govern¬ 
ments, distribution of 

powers between .182-185 

Controversies between a state 
and citizens of another 

State .534-535 

Defined by Judge Black .... 508 

By Judge Cooley . 507 

By Supreme Court . 507 

By Webster . 506 

Division into two and adjust¬ 
ment of debts.536-537 

Encroachment upon by Fed¬ 
eral Government. 508 

Executive officers of. 510 

Government . 506 

Government, made by direct 

vote of the people . 529 

Judicial powers of. 510 

Legislative powers of. 509 

Legislature, organization and 

Government of . 508 


Page 

STATES and United States, Ed¬ 
mund Randolph’s views 

as to . 516 

And United States, Everett’s 

views as to .515 

And United States, how differ¬ 
ences ought to be settled 

514-515 

As parties to the Constitution 

518-519 

As parties to suit. 537 

Causes of war between ..431-432 

Coercion by U. S. 286 

Condition of prior to Consti- 

" tution. 507-508 

Confederate, Constitution of 

460-465 

Contest between the large and 

small . 268 

Controversies between . 534 

Controversies between, powers 

of United Government in 164 

Created by the people .510 

Division of territory . 536 

Elements of United States .. 506 
Encroachment upon their 

rights . 522 

Exempt from Federal taxa¬ 
tion . 523 

How admitted into the Union 

213 et seq. 

How formed . 214 

Independence acknowledged 

by England . 386 

Indestructible Union of. 175 

Is the Constitution a compact 

between? .258-264 

Limitations upon powers of 

530-532 

National character of . 172 

Not antagonistic to Federal 
Government . 512 


Papers of most importance .. 297 

Powers, duty as to usurpation 

of . 508 

Powers of governor of. 509 

What constitutes (Poet Alca¬ 
eus) . 506 

STATES, actions against ...537-539 
Actions against agencies of 

539-543 

Actions by .543-545 

Actions one against another 536 
Actions or suits against reg¬ 
ulated . 217 

Admission of into Union con¬ 
ditionally . 420 

And United States, Davis’ 

views as to.514-515 


Parties to Constitution (note) 

89; 325 

Police powers of.532-534 

Powers and functions of 527-530 

Powers internal: United 

States external . 518 

Powers of .523-524 

Power to borrow money. 523 

Power to regulate suits in own 

Courts .535-536 

Relation of to each other and 

to United States . 510 

Relation of to general Gov¬ 
ernment .513-517 

Relations of to one another 

517-518 






















































INDEX 


569 


Page 

STATES, relation of to United 

States Government . 172 

Reserved powers of .524-527 

Reserved powers of guaran¬ 
teed . 325 

Rights .519-523 

Resoluting against Congress.. 323 
Rights and sovereignty of .. 57 

Rights, as to amendments of 

Constitution . 332 

STATES’ RIGHTS as to slavery 

433-436 

Early views of those who 

made the Constitution .. 379 

In New England . 95 

Madison’s views as to 

199; 271-272 

To coerce denied .. ... 382 

Two schools of . 521 

Waning or disappearing .... 264 
STATES, union of the United 

States is . 175 

United, sovereign powers of 56 
STATUTES and Constitution, 

differences between. 222 

Differentiated from Constitu¬ 
tions . 222 

Of Southern States, held void 481 
STATUS of laws of Confeder¬ 
ate States . 481 

Of the negro .454-457 

STEPHENS, Alexander, states 
Davis’ position as to se¬ 
cession . 375 

STEPS toward Union . 22 

STORY and Jefferson’s schools; 
their theories as to na¬ 
ture of Government .156 

STORY on bill of rights. 295 

STRATOCRACY, defined by 

Mr. Bouviere . 49 

STRENGTH of America,—de¬ 
mocracy .128-130 

STRICT and broad construc¬ 
tions of Constitution 280-281 
STRIKES, origin and history 

of .356, 357 

SUITS against agencies of 

States .539-543 

By States .543-545 

States as parties to . 537 

SUMTER, FORT, evacuation of 

405-410 

Occupation of .402-405 

SUPPOSED faults of democra¬ 
cies .127-128 


Page 

SUPREMACY of powers of 
United States Govern¬ 
ment .170-171 

SUPREME Court defines ne¬ 
gro’s status .453 et seq. 

Court, differences with pres¬ 
idents . 278 

Court, jurisdiction of . 329 

Court of United States justi¬ 
fies slavery . 415 

Court of U. S., Madison’s ob¬ 
servations on ....272 et seq. 
Court, secession at the bar of 

397-398 

Law and power . 170 

Law of the land. 329 

Law of the land defined .... 214 
Law, the Constitution as .... 221 
SUSAN B. ANTHONY amend¬ 
ment .66-67 

SYDNEY SMITH’S description 

of England’s laws . 152 

TAFT’S description of State 

and Federal powers. 198 

T ALLYR AND ’ S Eulogy of 

Hamilton .252-253 

“TAMMANY HALL’’ in poli¬ 
tics . 349 

TARIFF cause of nullification. . 367 
TAXATION, United States can¬ 
not tax States or their 

agencies . 523 

TAXES on income authorized.. 219 
TEACHER, the American com¬ 
monwealth as a teacher 

of Europe .87-88 

TENDENCIES of Consolidated 

and Federal Governments 110 
TERRITORIAL Government 
first established, form of 

38 et seq. 

TERRITORY northwest of Ohio 
River, ordinance for Gov¬ 
ernment of.38-47 

TEXAS, annexation, threat of 

dissension . 374 

TEXTBOOKS on construction 

of Constitution .282-283 

Jefferson’s selection . 270 

THAYER of New York, speech 

on secession . 392 

THE COLONIES .18-22 

THEOCRACY, defined by Mr. 

Bouviere . 48 

THE PEOPLE the only deposi¬ 
taries of Government ... 53 
The only sovereigns ...56 et seq. 
THE UNION,—who are its real 

friends . 203 
















































570 


INDEX 


Page 

THIRTEEN United States, 
unanimous declaration of 

22-26 

THIRTEENTH AMENDMENT 218 

Construed by Supreme Court 

of the United States . . . 452 
Copied from great ordinance 

of 1787 . 414 

And 14th amendments, how 

adopted . 503 

14th and 15th, adoption of 

498 et seq. 

14th and 15th limit powers of 

States . 531 

THOSE who made the Constitu¬ 
tion .252-253 

THREE departments of Gov¬ 
ernment .186-187 

THURLOW’S idea of George 

III . 69 

TITLE of nobility not granted 211 

TOCQUE VILLE ’ S idea of 

American Government . . 195 

TRAFFIC, white slave.447-449 

TREASON defined . 213 

Punishment for. 213 

TREATIES, how made . 212 

TREATY laws and Constitution 221 

Power, extent of . 168 

TRIALS, speedy and public, 

guaranteed ....... 216 

TRIUMPHS and trophies of 

American Government 143-145 
TROPHIES and triumphs of 

American Government 143-145 
TUCKER’S idea as to objects 

of Government . 51 

His tribute to American prog¬ 
ress .143-144 

TWO GOVERNMENTS com¬ 
bined in one . 98 

TYRANNY, defined by Mr. Bou- 

viere . 48 

In Government .122-123 

TYRANTS and usurpers, defined 

by Mr. Bouviere . 48 

UNANIMOUS declaration of % 
the thirteen United States 

of America.22-26 

UNION, admission of States 

into conditionally .. 420 

American, nature of . 202 

And Confederation, difference 

between . 38 

But not a nation is the United 

States .174-175 

Destroyed by sectionalism .. 175 


Page 

UNION, destruction of, causes 


tending to .176-177 

Dissolution of . 287 

History of . 206 

Inception of.20-21 

Indissoluble ..94-95 

Its friends and foes, by Mad¬ 
ison . 203 

Of States the United States is 175 

Of the colonies .18-19 

Origin and history of. 206 

Perpetual . 175 

Perpetual, and articles of Con¬ 
federation .27-38 

Preserve it . 205 

Purposes of . 175 

Steps toward. 22 


Threatened by geographical 
divisions (Washington) 

300-301 

To form a more perfect one.. 202 
UNITED STATES, actions by 

against States. 543 

Action or suits against 201 et seq. 

A nation .102, 205 

And State Governments, dis¬ 
tribution of powers be¬ 
tween .182-185 

And States, not antagonistic 512 
And States, powers and duties 

compared and contrasted 512 

As a party to actions. 202 

A union but not a nation 174-175 

A union of States . 175 

Composed of States, terri¬ 
tories, and District of 

Columbia . 202 

Constitution (copy of) ...207-215 
Constitution, amendments to 

(copy of) .216-220 

Constitution compared with 

others .267-268 

Government, actions against 

201-202 

Government a Federal Gov¬ 
ernment . 155 

Government, compacts in 107-108 
Government distinguished 
from other Governments 

146-149 

Government, dual form of 

88-89; 149 

Government, dual meaning of 89 
Government, dual or com¬ 


pound nature of . 149 

Government, form and nature 

of .91-105 


Government, how ordained 153-154 
















































INDEX 


571 


UNITED STATES Government, 
is it Federal, national or 

a league?.158-159 

Government, is it Federal or 

national? .155-158 

Government, not a republic 

nor a democracy . 161 

Government of limited powers 

162-164 

Government, powers conferred 

on ...161-162 

Government, powers of in con¬ 
troversies between States 164 
Government, relation to sev¬ 
eral States . 172 

Government, sovereign powers 

of .150-153 

Of America, thirteen, unan¬ 
imous declaration.22-26 

Political parties in .338-344 

Powers of external: of States 

internal. 518 

Relation of States to . 510 

Sovereign powers of. 56 

UNIVERSAL brotherhood of 

men . 352 

UNLIMITED power of Govern¬ 
ment, evils of. 90 

UNWRITTEN and written Con¬ 
stitutions .110, 243-244 

USAGE, effect on Constitution 228 
USURPATION and calumny 

compared . 334 

USURPATIONS of State powers 508 

UTILITY, construction . 276 

VACANCIES in office of Con¬ 
gressmen, how filled .... 207 
In office of senate, how filled 219 
VAN BUREN on nullification 

- and secession . 367 

VENUE in criminal cases guar¬ 
anteed . 216 

In criminal trials defined by 

Constitution . 216 

Origin of (note) . 8 

VETO of bills by president . . . 209 

Power in England and in 

America compared. 67 et seq. 
VICE-PRESIDENT, constitu¬ 
tional provision as to 

election . 217 

President of senate . 208 

VICES and defects of Confed¬ 
eration .36-37 

VIRGINIA and West Virginia, 

adjustment of debts . . . 536 
Convention, form of ratifica¬ 
tion . 283 


Page 

VIRGINIA convention, to ratify 

Constitution . 283 

Resolutions, excerpts from re¬ 
port on .325-332 

Resolutions of 1798 ......323-324 

Resolutions of 1798, address 
of general assembly on 

333-335 

Resolutions of 1799 .324-325 

Resolution, Webster’s view 

of it .520-521 

VOTE, right to, regulated .... 219 
WALLWORTH, Chancellor, 

speech on coercion . 392 

WARDS of nation, Indians are 

457-460 

WAR BETWEEN THE 
STATES, causes of 424-5; 

431-432 

Contention between northern 
and southern States. 

465 et seq. 

Intrigues of other nations con¬ 


tributed to .463 et seq. 

What the contending parties 

fought for .466 

WAR changes form of Govern¬ 
ment . 84 

Of 1812, end of. 336 

Power of president during 

64 et seq. 

Power to declare . 210 

Pretext for power . 335 

The spirit of monarchies . . . 109 

Time . 282 

WASHINGTON’S advice to the 

friends of the nation . .. 203 

Advisers . 286 

And Hamilton, compared by 

Bryce . 252 

Command to preserve the 

Union . 205 

Farewell address .298-308 

WEBSTER and Clay compared 

by Blaine .. 348 

And Clay, politics of ....348-349 


Changed his views as to Con¬ 
stitution being a compact 258 
Changed views, as to the na¬ 
ture and character of 

Constitution .. . 380 

Conversion by Madison .... 263 
Defines objects and purposes 

of Constitutions . 227 

Definition of sovereign power 54 
His Capon Springs speech.. . 259 
His prophecy as to war and 

secession .394-395 















































572 


INDEX 


Page 

WEBSTER, his reply to Cal¬ 
houn’s resolution and 
speech that the Constitu¬ 


tion was a compact. 261 

His reply to Hayne . 262 

His views as to slavery 

433 et seq 

On nullification .369-71 


On nullification and secession 364 
Opinion as to slavery in 1833 426 
WELLES, secretary of navy un¬ 
der Lincoln, speaks of 
conference as to Fort 

Sumter . 408 

WHAT constitutes a State .... 506 
WHEN and how the Constitu¬ 
tion was made.244-245 

WHIG PARTY that of Henry 

Clay . 341 

WHIGS, division among . 342 

WHITE SLAVE LAW. 149 

WHITE SLAVE TRAFFIC 447-449 
WHO construes the Constitu¬ 
tion? .278-280 


Page 


WILL of majority should give 

law . 54 

WILMER, (Bishop), refused to 
pray for president: result 

of refusal . 503 

WILMOT PROVISO . 427 

WILSON, WOODROW, original 
views as to European 

leagues or alliances. 320 

His view as to checks and 

balances . 190 

His views as to division and 
centralization of powers 


195 et seq. 

WITNESSES, defendant en¬ 
titled to compulsory proc¬ 


ess .. . 216 

Defendent must be confronted 

by . 216 

No one compelled to be wit¬ 
ness against himself .... 216 
WRITTEN and unwritten Con¬ 
stitutions .243-244 

Compared by Riddell . 110 










































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